Parshat Shoftim 5783: Rabbinic Decision Vs Torah Law?

Shalom Friends;

This week, our Parshat HaShavua, Parshat Shoftim is being sponsored by Dr. Ari and Judy Mosenkis of Ramat Beit Shemesh in honor of the Shoftim being Ari’s Bar Mitzvah Parsha and dedicated in honor of shidduchim for all those who need it and for a refuah shelaima for all cholei yisrael!. To the Mosenkis family, many thanks for your sponsorship and for your continued kindnesses and good wishes

You can celebrate a Simcha — a birth, a Bar/Bat Mitzvah, a Chassuna or other Simcha event in your life, or commemorate Yahrtzeit of a loved one, or for whatever other reason by sponsoring (or as the case may be, co-sponsoring) a Parshat HaShevua.

Please forward to your relatives and friends and encourage them to sponsor a Parshat HaShevua. And please be in contact with me with any questions, or for further details.

Best Regards,

Moshe Burt
skype: mark.burt3

Parshat Shoftim 5783: Rabbinic Decision Vs Torah Law?

by Moshe Burt

As in previous vorts on our Parshat Shoftim, this author begins by focusing on the Torah requirement of appointment of judges, and officers of the court to enforce judicial decisions without prejudice or bribe, either for or against litigants, and with righteous judgement. (This Author’s summary of Sefer Devarim, Perek 16, posukim 18-19)

The third posuk of our parsha reads:

“Tzedek, Tzedek tierdof…” Righteousness, righteousness (also rendered Justice, Justice) you shall pursue that you may live and inherit the land which the Lord, your G’d gives you.” (Sefer Devarim, Perek 16, posuk 20)

In short, this means the application of righteousness of judgement to police and law enforcement, as well as the judiciary. And the paradigm posuk of our Parshat: “Tzedek, Tzedek tierdof –(Justice, Justice) shall you pursue” would seem to apply to law enforcement to at least the same extent as to Judges and Judiciary.

Such righteousness regarding officers of the court, meaning law enforcement, and Judicial judgement must not be prejudiced by bribes, gifts, appearance of, or financial position of either litigant. Such righteousness, in a true Halachic state should/would be totally devoid of political agenda.

With this year’s vort, this author would cite Rabbi Shmuel Goldin’s Parshat Shoftim Summary and echoes his questions posed, in his sefer “Unlocking the Torah Text”, Sefer Devarim, on our Parsha regarding Rabbinic decision vs Torah Law (pages 167, 183-184) :

After a short segue dealing with the prohibition of idolatry… Moshe returns to the legal system as a whole….
He commands the nation to consult with the leaders of their day across the generations when facing situations of uncertainty. “You shall not deviate,” he insists, “from the word that they will tell you, right or left.” (Rabbi Goldin citing Sefer Devarim, Perek 17, posuk 11)

Would the Torah command us to follow the Halachic decisions of the Rabbis even when we know these decisions to be wrong? Does Rabbinic decision [excuse the expression — MB] trump Torah Law?

To discuss in detail the various understandings of commentators cited by Rabbi Goldin would render this vort voluminous. This author will suffice to present Rabbi Goldin’s citing of Rambam on the process as it seems the clearest, most concise understanding (ibid, page 187) :

A foundational approach to the issue of [possible] Rabbinic error can be gleaned from the Rambam’s analysis of Halachic process, recorded in his introduction to his commentary on the Mishna.

Halachic process, the Rambam maintains, is built upon the central tenet that after transmitting the written text together with specific oral laws to Moshe, Hashem “steps back” and hands Divine Law over to man for interpretation and application. As Hashem retreats from active involvement in decision making, He relinquishes His infallible control over the course of the Law. The Rabbis, using the rules of study transmitted at Sinai, become charged with the analysis of the text and with the application of its Laws to ever changing times and circumstances. Limited man, prone to error, is now Divinely authorized to determine Halacha’s path, and Hashem Himself agrees to accept the conclusions reached by man as Law. (Rabbi Goldin citing Rambam, Peirush HaMishnayot, introduction)

In light of the Rambam’s analysis, …the issue of Rabbinic error becomes fully comprehensible. An individual must follow the dictates of the Rabbis, even if he is certain that they are objectively flawed. Within the Halachic realm, such retrospective objective analysis is immaterial. If the Rabbis followed the system with loyalty, their decisions are corrrect, “even if they tell you that left is right and right is left.” (Rabbi Goldin citing the quote contained in Sefer Devarim, Perek 17, posuk 11)

In discussing whether Rabbinic decision could be seen as at odds with Torah law, we look back to Rabbi Goldin’s questions, commentaries and discussions regarding Moshe Rabbeinu’s unilateral [adjective: undertaken or done by or on behalf of one side, party, or faction only; not mutual: a unilateral decision; unilateral disarmament] command to Korach and his followers in his sefer “Unlocking the Torah Text” Sefer Bamidbar regarding Parshat Korach (pages 160-162) as possible precedent for Rabbinic decision making authority:

“This you shall do: Take yourselves censers — Korach and his entire assembly — and put fire in them and place incense upon them, before Hashem tomorrow. And it will be the man that Hashem will choose, he is the holy one. You presume too much, children of Levi.” (Rabbi Goldin rendered to English Sefer Bamidbar, Perek 16, posukim 4-7)

Later in the narrative, …after receiving instructions from Hashem to separate the onlookers from Korach’s camp, Moshe proclaims to the watching nation:

“With this you shall know that the Lord sent me to perform all of these deeds; that it was not from my heart. If these [the rebels] die like all men and the destiny of all men is appointed for them, the Lord has not sent me.

“But if the Lord will create a new phenomenon, and the ground will open it’s mouth and swallow them up with all that is theirs, and they will descend alive into the pit, then you will know that these men have provoked the Lord.” (Rabbi Goldin rendered to English Sefer Bamidbar, Perek 16, posukim 28-30)

A careful reading of the text reveals a powerfully puzzling question that we could easily miss.

How could Moshe devise a supernatural test without prior consultation with Hashem? All other paranormal miracles in the Torah are Divinely ordained. What gives Moshe the right, in this one instance, to respond to Korach’s rebellion by first constructing a supernatural trial and only then apparently requesting/demanding Hashem’s participation?

A number of commentaries, including Saadia Gaon and the Rashbam… claim that Moshe’s seemingly independent actions are not independent at all.

Upon hearing the rebel’s accusations, Moshe “falls on his face.” This response, these scholars maintain, is an attempt on Moshe’s part to communicate with Hashem through prayer for prophetic vision.During his supplications, Moshe receives Divine instructions as to how to respond to the challenges before him. These steps…, are determined by Hashem, not by Moshe. (Rabbi Goldin citing Saadia Gaon on Sefer Bamidbar, Perek 16, posuk 4; Rashbam, ibid)

Other authorities, however, including Rashi, mirror an earlier Midrashic tradition that interprets Moshe’s reaction to the insurrection differently. Moshe falls on his face, …not in prayer, but in shame and despair. Confronted with B’nei Yisrael’s repeated rebellions, Moshe now finds himself incapable of interceding on their behalf. (Rabbi Goldin citing Rashi on Sefer Bamidbar, Perek 16, posuk 4; Midrash Tanchuma, Sefer Bamidbar, Korach 4)

According to these authorities, …our original questions remain. If Hashem does not communicate with Moshe at the outset of the rebellion, how does Moshe know what to do? Is it possible that Moshe, on his own, devises the test by which Korach and his followers will be tried and then requests/demands Hashem’s acquiescence? If so, by what right does he do so?

Perhaps the answer lies in the overarching threat presented by Korach’s rebellion… This insurrection is not only a grab for personal power on the part of the rebels, but a fundamental challenge to Moshe’s overall halachic influence. Left unchecked, Korach’s efforts would undermine the very concept of rabbinic authority at its infancy, dealing a death blow to the halachic process and to the ability of the nation of the Jews to survive across the ages.

Central to the concept of rabbinic authority and to the Halachic process as a whole is the revolutionary partnership forged between Hashem and man in the development of the law. Within the context of this partnership, Hashem effectively cedes the determination of the law to man through his authorization of the Rabbis to interpret and apply the Divine Decrees.

Moshe recognizes… that with Korach’s rebellion, the Halachic Hashem-man partnership already stands at a critical crossroads — almost before it begins. He concludes that, to protect the integrity of the Halachic process, he must not only prove himself to be the Divinely selected progenitor of Rabbinic authority, but he must also openly demonstrate the Divinely mandated underpinnings [any supporting structure or system] of that authority. Moshe therefore turns to Hashem and takes a calculated risk.

Rabbi Goldin notes (ibid, page 163) :

Moshe, risking everything on a bold experiment that he feels must succeed, publicly “pushes Hashem’s hand” in response to Korach’s rebellion. Hashem’s positive response, in the face of open challenge, reinforces the partnership lying at the core of the halachic process and ensures the stability of Halachic law at it’s inception.

Rabbi Goldin concludes, in our Parshat Shoftim analysis of Rabbinic Decision vs Torah Law (“Unlocking the Torah Text” Sefer Devarim, page 198) :

How far does Rabbinic authority extend? The question will always be front and center as the Orthodox community continues its journey, affecting the formulation of critical decisions ranging from the personal to the communal, for years to come.

May we, the B’nei Yisrael be zocha that our brethren — the refugee families from Gush Katif be permanently settled and be made totally whole — be totally restituted for all that was stolen from them, that the thrice expelled families of Amona be restored to their rebuilt homes and the oft-destroyed Yeshiva buildings in Homesh be rebuilt, all at total government expense; due to alt-leftist-agendized, supreme court legalized Yassamnik gunpoint. Baruch Hashem that our dear brother Jonathan Pollard is now in his third year at home in Eretz Yisrael and has embarked on a new chapter in his life. May Esther Yocheved bat Yechiel Avraham have an aliyah in Shemayim and may her spirit and memory continue to lift Jonathan to at least 120 years. May the MIAs be liberated alive and returned to us in ways befitting Al Kiddush Hashem — as with the return in April, 2019, via Russia, of the remains of Zachariah Baumel, as should the remains of the two chayalim from the Gaza War of nine years ago. May we have the courage and strength to stand up and physically prevent the possibility of Chas V’Challila any future eviction of Jews from their homes and prevent Chas V’Challila the handing of Jewish land over to anyone, let alone to enemies sworn to Israel’s and Judaism’s destruction and eradication. And may we soon and finally see the total end to the Communist Chinese corona virus pandemic and all like viruses. May we fulfill Hashem’s blueprint of B’nei Yisrael as a Unique people — an Am Segula, not to be reckoned with as with “the nations” and may we be zocha to see the Moshiach, the Ge’ula Shlaima, as Dov Shurin sings; “Ki Karov Yom Hashem Al’Kol HaGoyim”, the Ultimate Redemption, bimhayrah b’yamainu — speedily, in our time”, — Achshav, Chik Chuk, Miyad, Etmol!!!

Chodesh Tov and Good Shabbos!
Moshe Burt, an Oleh, is a commentator on news and events in Israel and Founder and Director of The Sefer Torah Recycling Network. He lives in Ramat Beit Shemesh.