SALT Parashat Shoftim 2015/5775

  • Rav David Silverberg

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            The Torah in Parashat Shoftim (19:16-19) introduces the law of eidim zomemin, which applies in a case where witnesses testify to the fact that other witnesses could not have seen the incident to which they testify.  In such a case, the Torah instructs, the Beit Din is to punish the false witnesses with the same punishment they sought to bring upon the defendant against whom they had wrongly testified.

            The Gemara in Masekhet Sanhedrin (27a) comments that (at least according to the view of Rava) this law of eidim zomemin constitutes a “chiddush” – an exception to usual protocols.  Normally, when two sets of witnesses contradict one another, the court’s hands are tied and cannot act upon either testimony.  Assuming that both sets of witnesses underwent the court’s interrogation and gave no indication of dishonesty, the court is not authorized to believe one piece of testimony over the other.  In the specific case of eidim zomemin, however, when witnesses testify that a different set of witnesses were not present at the time of the incident to which they testify, the second set of witnesses is believed.  Beit Din is to accept their testimony that the original set of witnesses lied when they claimed to have witnessed the event, and the original set of witnesses is then punished.

            Various theories have been advanced to explain the reason for this “chiddush.”  Why does the Torah deviate from the normal procedures in this context, and instruct Beit Din to accept the testimony of the second set of witnesses?

            The most famous answer is given by the Ramban, who suggests a distinction between the case of eidim zomemin and a classic case of contradictory testimonies.  In the case of eidim zomemin, the second set of witnesses do not contradict the content of the testimony given by the first set, but rather testify about the first witnesses themselves.  They do not address the question of whether, for example, the defendant killed the victim as he was charged.  Rather, they testify that the witnesses were somewhere else at the time of the alleged incident, and thus could not have seen what happened.  Since a person cannot testify about himself in Beit Din, this is not truly a case of two sets of witnesses testifying against one another, and Beit Din accepts the second testimony.  This explanation is given also by the Tur (C.M. 38).

            Interestingly, Rav Shimshon Raphael Hirsch, in his Torah commentary, challenges this theory.  He notes that the very institution of formal testimony presupposes that witnesses are believed to say they were at a certain place at a certain time.  While it is true that in general, a person’s testimony about himself and his conduct is not accepted by a Beit Din, the Torah clearly accepts a person’s testimony that he was present when a certain incident took place, as otherwise, no testimony would ever be accepted.  As such, the distinction drawn by the Ramban is incorrect, as even in the case of eidim zomemin, the two sets of witnesses directly contradict one another.  Rav Hirsch therefore concludes that the law of eidim zomemin is a “chiddush” in the sense that we have no explanation for why the Torah made this case exceptional from other instances of conflicting testimonies.

Sunday

            Yesterday, we noted the distinction that Halakha draws between hakchasha and hazama – a situation where witnesses directly contradict testimony given by earlier witnesses, and where witnesses claim that the earlier witnesses were not present at the time of the alleged incident.  As the Rambam discusses in Hilkhot Eidut (18:2), if two sets of witnesses give conflicting reports as to what occurred, then Beit Din cannot accept one piece of testimony over the other, and its hands are essentially tied.  Thus, if a set of witnesses testify that a loan was given at a certain time and place, and another set of witnesses testify that they were with the alleged lender and borrower at that time and no loan was given, Beit Din does not act upon either testimony.  If, however, the second set of witnesses testify that they were with the first witnesses at the time they claimed the loan was given, the first witnesses are determined to be eidim zomemin (false witnesses) and are punished.  (In the case of falsely testifying about a loan, they would be required to pay the sum they sought to force the alleged borrower to pay.)

            An interesting question arises in a situation where the second witnesses testify to the fact that both the witnesses and the litigants were with them somewhere else at the time of the alleged incident.  As we saw, the law of eidim zomemin applies if the second set of witnesses testify that the first witnesses were with them somewhere else; if they testify that the plaintiff and defendant were somewhere else, then neither set of witnesses is believed.  But what happens if the second set of witnesses testify that the first witnesses and the two parties were with them at a different location?

 

            The Lechem Mishneh commentary to the Rambam’s Mishneh Torah notes that the Rambam addresses such a case in the aforementioned passage.  In describing a situation of hakchasha (where the two sets of witnesses contradict each other, and neither is believed), the Rambam writes, “…two other witnesses come and said, ‘On this day and at this place, you were with us and with these people, the entire day, and it never happened…”  The Rambam clearly speaks of a case where the second witnesses testify to having been with both the first witnesses and the litigants, and he considers this a case of hakchasha, not hazama.  Even though the second witnesses testify that the first witnesses were not at the place where they claim to have witnessed the incident, like in a case of hazama, this testimony does not qualify as hazama because it also includes testimony about the litigants.

            The Lechem Mishneh notes that this issue likely hinges on the question as to a possible rational basis for the distinction between hakchasha and hazama.  As we saw yesterday, the Tur (and Ramban) explained that in a case of hazama, the Torah accepts the testimony of the second witnesses because they are testifying not about the actual case, but rather about the first witnesses.  Beit Din does not accept the testimony of people about themselves, and thus the first witnesses’ claim that they witnessed the incident does not qualify as formal testimony about where they were at that time.  Hence, we accept the testimony of the first witnesses.  The Lechem Mishneh suggests that according to this rationale, it should not make any difference whether the second witnesses testify only about the first witnesses, or also about the litigants.  Once the second witnesses testify that the first witnesses were not where they said they were, the second witnesses are believed and the first are considered eidim zomemin.  The added information provided by the second witnesses, that the litigants were also present at the time, is immaterial.  (Indeed, as the Lechem Mishneh notes, the Tur does not draw any distinction between these two cases.)

            The Rambam, however, appears to follow a different approach.  In his view, there is no rational basis (that we can understand) for the exception of eidim zomemin, for why the Torah instructs Beit Din to believe the second set of witnesses and not the first.  Therefore, we cannot apply intuitive logic to determine the parameters of this law.  It applies only in the very specific case spoken of by the Torah – when the second witnesses claim that they were with the first witnesses at the time of the alleged incident.  If the second witnesses claim that they were with the first witnesses and also with the litigants, this is not the situation described by the Torah, and thus it does not fall under the special law of eidim zomemin.

Monday

            Yesterday, we continued our discussion of the distinction between hakchasha and hazama – the different situations in which two sets of witnesses present contradictory testimonies.  Essentially, hakchasha refers to a situation where the second set of witnesses directly contradict the content of the first witnesses’ testimony, whereas hazama refers to a case where the second witnesses testify to having been with the first set at the time of alleged incident to which they had testified.  In a case of hakchasha, Beit Din does not accept or act upon either testimony, whereas in a case of hazama, the second witnesses are believed.  

            As we saw, the Lechem Mishneh commentary to the Rambam’s Mishneh Torah (Hilkhot Eidut 18:2) addresses a case where the second witnesses testify to having been with the first witnesses as well as with the litigants, and that the alleged incident did not occur.  This case combines elements of both hakchasha – as the second witnesses directly contradict the content of the original testimony – and hazama – as the second witnesses testify to having been together with the first witnesses.  As the Lechem Mishneh notes, the Rambam indicates that such a case qualifies as hakchasha, and Beit Din accepts neither testimony, whereas the Tur – as understood by the Lechem Mishneh – would consider this case a situation of hazama.

            Rav Shimshon Raphael Hirsch addresses this question his Torah commentary, in Parashat Shoftim (19:19), and suggests a rationale to explain the Rambam’s position.  He writes that the concept of hazama is undermining the original witnesses’ eligibility to give testimony about the case at hand.  By this definition, hazama requires testifying that the original witnesses were not near the relevant parties at the time the alleged incident was said to have occurred.  This is the crux of hazama – undermining the original testimony at its core by testifying that the first witnesses were not in a position to witness the event at the time they claimed it took place.  Therefore, if the second witnesses testify to have been with the first witnesses and with the litigants at the time of the incident, this cannot qualify as hazama.  This testimony does not declare the first witnesses ineligible, as it is still possible that the first witnesses observed the incident which they claimed occurred at that time.  The second witnesses’ testimony challenges only the content of the first witnesses’ testimony, and this situation is thus to be considered hakchasha, and not hazama.

Tuesday

            The Torah in Parashat Shoftim outlines the basic laws that apply to the Israelite king, specifically, the limits on his acquisition of wealth and horses, and on his number of wives, as well as the requirement to write a Sefer Torah which he keeps with him at all times.  This section concludes, “…so that he will not feel in his heart superior to his brethren, and that he does not deviate from the laws right or left” (17:20).

            Chizkuni, commenting to this verse, writes that the Torah here explains the reason for all the aforementioned laws – both the restrictions on assets and wives, and the requirement to keep a Sefer Torah with him.  All these requirements are geared toward the purpose of “le-vilti rum levavo mei-echav” – to help ensure that the king does not become arrogant and feel superior to the rest of the people. 

            One might wonder how the final requirement – to write a Sefer Torah which stays with him at all times – serves this function.  When it comes to the restrictions imposed on a king, it is understood that excessive property, or a large harem, could cause the king to feel superior and wield too much power over the people.  But how precisely does a Sefer Torah contribute to this goal of keeping the king humble?

            One possibility is offered by the Ketav Sofer, who writes that the more a person knows, the more he realizes he does not know.  The more we delve into Torah, the more we appreciate the endless amount of information it contains, and the more humble we become.  And thus the king is to frequently study Torah so he recognizes his limits and how much there is which he does not know.

            Additionally, however, regular Torah study reminds us of our status as servants of God so that we live each day with a sense of obligation and duty.  When we study Torah and learn of God’s numerous commands and demands to which we are bound, the experience shapes the way we see ourselves and our lives.  It reinforces our awareness of our responsibilities and obligations, that we live to serve God and not to serve ourselves.  For nobody is this awareness more vital than the king, who enjoys authority and could easily begin feeling a sense of entitlement and set enjoyment and self-aggrandizement as his life’s primary goal.  Regular Torah learning is required to remind him that he, like the reason of the nation, is a subject and servant, who is expected to live his life in the faithful service of God, and not in the unbridled pursuit of wealth, pleasure and prestige.

Wednesday

            The final section of Parashat Shoftim discusses the egla arufa, the ritual which must be performed by the leaders of a city if a murder takes place near its borders and the killer has not been identified.  After the nation’s leaders measure to determine which city is closest to the crime scene, the city’s leaders must bring a calf to a valley, kill it, and avow their innocence, thereby earning atonement for the crime that was committed.

            In presenting this law, the Torah (21:3-4) writes that “ziknei ha-ir ha-hi” – the elders of “that city” – must bring a calf and perform this ceremony.  Noting the word “ha-hi” (“that”) in this verse, the Sifrei comments that this word serves to exclude the city of Jerusalem. 

            Rav Chaim Kanievsky, in his Nachal Eitan, notes that this brief remark of the Sifrei has been explained in two different ways.  Rabbenu Hillel, author of a commentary on the Sifrei, explains that whereas the first stage of the egla arufa process – namely, the measuring – is done by the Sanhedrin, the nation’s religious leaders in Jerusalem, the next stage, the actual egla arufa ceremony, is performed by the leaders of the nearest city. This is the Sifrei’s intent when it comments that the phrase “ziknei ha-ir ha-hi” serves to exclude the city of Jerusalem.  It means that the egla arufa ritual is the responsibility of the leaders of the city nearest to the murder, and not of the national leaders in Jerusalem.

            The Vilna Gaon, however, as Rav Kanievsky notes, explained the Sifrei differently, as referring to the halakha which appears in the Mishna (Sota 45b) excluding the city of Jerusalem from the egla arufa obligation.  If a murder victim is found near Jerusalem, the city’s leaders do not perform this ritual.  The Gemara (there in Sota) explains this halakha based on the principle, “Yerushalayim lo nitchaleka li-shvatim” – Jerusalem belongs to the entire nation, and its territory was not allocated to any one of the twelve tribes.  As such, the city is excluded from the law of egla arufa, which the Torah says applies in a case where a murder victim is found “in the land which the Lord your God is giving you to inherit [le-rishtah]” (21:1).  The Torah emphasizes that the law of egla arufa is observed only in “inherited” territory, implying that the territory must belong to a particular tribe, and thus it does not apply to Jerusalem, which does not belong to any single tribe.  The Sifrei, however, as the Vilna Gaon understands it, did not accept this inference, and therefore resorted to a different source for the exclusion of Jerusalem from the mitzva of egla arufa – namely, the phrase “ziknei ha-ir ha-hi.”

            The question arises, according to the Vilna Gaon’s reading, how does this phrase suggest that Jerusalem is to be excluded?  How did the Sifrei – according to the Vilna Gaon – infer from this phrase that the law of egla arufa does not apply to Jerusalem?

            The Meshekh Chokhma explains that according to this reading of the Sifrei, the phrase “ziknei ha-ir ha-hi” means that the elders performing this ceremony are the elders of only “ha-ir ha-hi” – the city which bears the obligation to perform the ceremony.  The elders of Jerusalem, however, are the leaders of not only Jerusalem, but of the entire nation.  As such, they do not meet the criteria alluded to by the phrase “ziknei ha-ir ha-hi,” and thus their city is not included in the obligation of egla arufa.

Thursday

            Yesterday, we noted the halakha established by the Mishna in Masekhet Sota (45b) excluding the city of Jerusalem from the obligation of egla arufa.  If a murder victim is found near Jerusalem, the leaders of Jerusalem are not required to perform the egla arufa ceremony as the leaders other cities are when a murder victim is found near their borders.  As we saw, the Sifrei (as understood by the Vilna Gaon) derived this halakha from the Torah’s requirement that the egla arufa be performed by “the elders of that city” (21:3-4).  The Meshekh Chokhma explained that the mitzva applies only when the city’s leaders are leaders only for their city, as opposed to the leaders of Jerusalem – the members of the Sanhedrin – who are the religious leaders for the entire nation.  The phrase “the elders of that city” indicated to Chazal that the egla arufa is performed only by leaders whose official governance extends no further than the city’s boundaries.

            The logic behind this provision, it would seem, relates to the concept of accountability which underlies the mitzva of egla arufa.  As the Torah writes (21:8), the purpose of this ritual is “ve-nikaper lahem ha-dam” – to atone for the act of bloodshed.  On some level, the leaders of the city nearest the crime scene are held accountable for the murder, and they must therefore perform this ritual, which resembles a sacrifice, to earn atonement.  According to the Meshekh Chokhma’s reading of the Sifirei, we might explain that the Torah assigns this culpability only to leaders whose official responsibilities are limited to their city, because they should have done more to prevent crime.  The burden of national responsibility resting upon the shoulders of Jerusalem’s leaders results in a lower level of responsibility for their own city.  As they are required to look out for the entire nation, they cannot be expected to tend to the needs of their city to the same extent as other city leaders.  Hence, they are not required to bring an egla arufa.

            If so, then the Meshekh Chokhma’s insight perhaps serves as a reminder about our limitations and the need for careful prioritization.  Accepting a heavy burden of responsibility has the effect of compromising our ability to tend to the needs closest to home.  In the Sanhedrin’s case, it appears, the Torah accepts this reality and is prepared to lower the bar of the Sanhedrin’s responsibility for Jerusalem for the sake of maintaining a strong centralized body of national religious leadership.  However, this might very well be the “exception that proves the rule,” rather than a precedent that should be emulated.  Before accepting a large burden of responsibility, one must carefully consider its effects on his basic and primary obligations.  While in some instances, as in the case of the Sanhedrin, compromise is warranted, in other situations, it isn’t.  Each decision must be carefully examined to determine whether compromising one’s ability to serve his “city” is justified for the sake of serving the entire “nation.”

Friday

            In our last two editions of S.A.L.T., we discussed the halakha mentioned by the Mishna (Sota 45b) and the Sifrei (to Devarim 21:3), that the law of egla arufa does not apply to Jerusalem.  The Gemara attributes this provision to the principle of “Yerushalayim lo nitchaleka li-shvatim” – the city of Jerusalem does not belong to any particular tribe of Israel, and tribal ownership is a precondition for the law of egla arufa (as the Gemara infers from a textual nuance in Parashat Shoftim).  The Sifrei (as understood by the Meshekh Chokhma), however, infers this law from the Torah’s indication that a city’s leaders must bring an egla arufa only if their authority is limited to their own city.  Since Jerusalem’s religious leaders are also the nation’s religious leaders, they are not included in the law of egla arufa.

            Rav Chaim Kanievsky, in his Nachal Eitan, writes that the Sifrei presumably resorted to a different source for this halakha because it does not accept the rule of “Yerushalayim lo nitchaleka li-shvatim.”  The Gemara in Masekhet Yoma (12a) cites Rabbi Yehuda as disputing this rule, and it is possible that the Sifrei followed Rabbi Yehuda’s position.  Indeed, Rav Kanievsky cites the Sifrei’s comment to a verse later in Sefer Devarim (33:12) which implies that it did not embrace the principle of “Yerushalayim lo nitchaleka li-shvatim.”  Accordingly, the Sifrei did not accept the Gemara’s reasoning for the exclusion of Jerusalem from the law of egla arufa, and it inferred this exclusion from a different source.

            It emerges, then, that even according to Rabbi Yehuda, who did not accept the rule of “Yerushalayim lo nitchaleka li-shvatim,” Jerusalem is excluded from the egla arufa obligation.  Rav Kanievsky noted that this conclusion resolves a question raised by Tosefot, in Masekhet Yoma (23a), regarding the tragic story told in the Gemara of a murder committed in the Beit Ha-mikdash.  A kohen was stabbed to death while racing up the ramp to the altar vying for rights to perform the service, and after the incident, Rabbi Tzadok spoke to the people, and indicated that an egla arufa might be necessary to atone for the crime.  The Gemara questions this remark, noting that this tragedy occurred in Jerusalem, which is excluded from the egla arufa obligation, and the Gemara answers that Rabbi Tzadok sought merely to underscore the gravity of the incident, and did not mean that an egla arufa was actually required.  Tosefot wonder why the Gemara did not consider the possibility that Rabbi Tzadok followed the view of Rabbi Yehuda, who disputed the rule of “Yerushalayim lo nitchaleka li-shvatim,” and thus maintained that the egla arufa obligation applies even in Jerusalem.  This question assumes that the only reason to exclude Jerusalem from the mitzva of egla arufa is the rule of “Yerushalayim lo nitchaleka li-shvatim.”  In light of the Sifrei, however, it appears that even those who dispute this rule nevertheless exclude Jerusalem from the law of egla arufa, and thus the Gemara did not consider the possibility that Rabbi Tzadok maintained that Jerusalem is included in this obligation.