THE AUTHORITY OF THE SANHEDRIN

WHAT"S IN A NAME

The naming of a parsha in the Torah generally reflects one of its opening words. Parshat Shoftim is no exception. I would like to add, however, that the name of this parsha also reflects the parsha's contents - practically the entire parsha is devoted to a description of the four categories of judges - the Sanhedrin (Torah scholars), the king, the Kohanim (including the Kohen Gadol), and the prophets.

Which of these categories of judges are granted the highest authority? I would venture to say that it is the Sanhedrin because they were given the right to determine who is a true and who is a false prophet, who is worthy of being Kohen Gadol, and who should rule as king.

WE ARE BOUND BY TORAH LAW

In Parshat Mishpatim we read of Hashem's teaching Moshe the demands of the Torah's legal system. For example, how we should relate to a robber, a slave, a shomer - (one appointed to keep another person's object for safekeeping whether or not he is paid for his services), etc. Dinim, as these laws are referred to, are incumbent not only upon the Jewish people, but upon all descendants of Noach. The Rishonim dispute the practical application of this: are non-Jews bound by the same Choshen Mishpat section of the Shulchan Aruch as we are, or do they have the right to set up a different legal system? According to the latter view, the nations of the world need not be in agreement regarding the specifics of their legal system. The English government may dictate laws that apply to English citizens, whereas the king of France may enact laws applicable to his subjects. More important than the specific laws is a system of law and order and not total anarchy where ish hayashar be-einav yaase "a man may do whatever seemed proper in his eyes" (Shoftim 17:6).

The Torah relied on each of the nations of the world to provide a reasonable legal system for its inhabitants. There would be nothing wrong with the English government punishing a thief by having him pay triple the value of what he stole, and the French having him pay five times its value. Whatever system each nation chooses, it must be binding on its people, and those who violate it must be punishable by death. The Jewish people are not permitted to create their own system, they are bound by the laws of the Torah - a thief pays double, one who slaughters or sells an ox or sheep pays four or five times the value, etc. The same rule applies to all prohibitions - we are bound by the Torah and not by what our intellect may see as fit. According to one opinion cited above, however, the other nations are free to create their own system of law.

There are instances, however, when the Beit Din is granted the right to exercise additional power both in punishing for offenses not punishable by the Torah, and in making the punishment more severe for already existing punishable offenses. For example, if robbery is so prevalent that it reaches epidemic proportions, in order to wipe it out the Beit Din may elect to adopt extreme measures. Rather than a robber paying double the value of what was stolen, they may pass a law requiring a robber to repay ten or twenty times the value of the stolen object. A king of Israel is also given the power to create additional laws, but unlike the Beit Din whose power to do so ranges in all areas of halacha, the king's right is limited to areas related to his sovereignty. Both the king and the Beit Din have the right to enact strong additional measures aimed at strengthening Torah observance.

We are commanded to follow the Divine system of justice: "ve-ele hamishpatim" "and these are the ordinances" (Shmot 21:1), these and no others. When Beit Din takes additional measures it is not in order to circumvent laws of the Torah by offering an alternative legal system, but rather the Torah at times gave Chazal the right to enact additional laws. R' Elchanan explains that Chazal's right to do so extends to that which effects non-Jews as well. The underlying goal, however, is not to provide an alternative legal system, but rather to strengthen the authority of the Divine system of justice. Our minds cannot decide what is and what is not better for the world, what is considered just and what is not. The only definition of justice is that set down by the Torah!

HOW DOES THE PROZBOL WORK?

Certain laws have been introduced over the years. A person who does not fully grasp the implication may be lead to believe that it was an attempt to circumvent Torah laws. Hillel, for example, introduced the prozbol (see Massechet Shviit Perek 10). This was not an attempt on Hillel's part to uproot the mitzvah of shmitta, G-d forbid. Hillel's act was in fact a response to the people's improper observance of the mitzvah. The Torah commands us: "Beware lest there be a lawless thought in your heart, saying, 'the seventh year approaches, the remission year,' and you will look malevolently upon your destitute brother and refuse to give him" (Devarim 15:9). People refrained from lending money due to fear that the upcoming shmitta year would negate debts owed to them and the money owed would not be returned. It was in order that people continue lending to others, thus fulfilling the wishes of the Torah, that Hillel introduced the prozbol.

With all said and done, is Hillel not in effect uprooting the mitzvah of shmitta? There are various explanations offered by different commentaries. Some explain that Hillel was only permitted to create such an institution because shmitta nowadays is only a Rabbinic requirement, had it been a Torah requirement then the prozbol would not have been permitted. Another explanation is that Hillel was not doing anything that was against the Torah. The Torah commands: "what you have with your brother, you shall remit your authority" (ibid. 3), this implies that the prohibition is that you may not collect your own debt, but you may collect someone else's. No matter how one views it, Hillel was not coming along and saying that he knew better than the Torah and it was time for a change - that the Torah required us to observe the monetary shmitta and Hillel told us not to listen, G-d forbid! Hillel was searching for a way to encourage observance of the Torah - the Torah tells us not to refrain from lending, and people were not lending to others. The Prozbol was instituted to strengthen observance of the Torah. Today, people have the audacity to say that if Chazal found a way to overcome the shmitta they should find a way to overcome other things. Chazal were not looking for a way out of any mitzvah but rather to strengthen observance of mitzvoth.

HOW DOES THE HETER ISKA WORK?

Another example of a later Rabbinic enactment often misunderstood is the heter iska used by all Jewish banks today. Did Chazal permit violating the prohibition of lending with interest - ribit? G-d forbid! Being that there are those who claim that the heter iska is invalid when used by someone who does not understand how it works, I am going to give a brief description of it. Although I am not convinced that it really does not work for one who does not understand it, it is important that everyone with any sort of bank account understand how it is that he is able to earn or borrow with interest. When borrowing or lending money, the Torah forbids us to accept or give any payment above the value of the loan. A loan is defined as something the lender gives to the borrower, with the borrower taking on full responsibility for its return. Claiming the money was burned, lost, or stolen does not absolve the borrower from his responsibility to repay the loan. If the lender were to return more than the amount borrowed, he will have violated the prohibition of ribit.

The sages set up a system in which the borrower is not held responsible for the safe return of the entire loan. In other words, half the money is viewed as a loan with all the responsibility associated thereof, and the remaining half is a pikadon - an object given by another to guard and under certain circumstances he is not obligated to return the object. A person may receive remuneration for safeguarding the property of another. For example, if the borrower comes to the lender claiming that he was held up at gun point and all his money was taken. If this can be proven and there was no negligence involved, the borrower would only have to repay the portion that was a loan and not the pikadon. The system obviously would be set up to discourage people from fabricating stories in an attempt to repay only half the money. The interest one receives for an investment, which may appear as interest payment for the loan, is for the pikadon portion of the money and not for the loan. I do not wish to discuss all the details as to when it is permitted to use this heter iska, but suffice to say that Chazal, in an effort to encourage lending of money, did not permit anything that the Torah prohibited.

MARRIAGES MUST BE KEDAT MOSHE VEYISRAEL

There are times when we find in the Gemara, the expression afkinu Rabbanan leKiddushin minei "the Rabbis abrogated his betrothal", but this is only valid because: kol hamekadesh adaata d'Rabannan mekadesh "whoever betroths a woman betroths her subject to the will of the Rabbis" (Gittin 73a). When a couple gets married it is on condition that the marriage is kedat Moshe veYisrael "according to the law of Moshe and Israel". A union that does not have the approval of the chachamim is viewed as if it never took place - it was not done kedat Moshe veYisrael. Despite the power to do so, Chazal were very hesitant to declare a marriage as retroactively null and void - its use was limited to specific cases. Even in situations of forbidden unions, such as those prohibited due to a lav or asei in which case according to the Gemara's conclusion the marriage does take effect, Chazal did not annul the marriage.Afkinu Rabbanan leKiddushim minei was not an innovation designed to uproot the Torah, it was rather reserved for specific cases and served to strengthen observance of the Torah.

WE MUST NOT TAILOR THE TORAH TO OUR NEEDS

Today the situation is such that people feel they may do what they think is right. For example, I heard of a Beit Din that calls itself Orthodox - (not Reform or Conservative) in America. This Beit Din discovered a new way to uproot a marriage. A woman whose husband is missing for a lengthy period of time is asked had she known that her husband would be missing, would she have gotten married. Of course she answers "no!" She certainly would not have wished to remain an aguna for so long. Based on this, the marriage is declared as having been made under false pretenses and is retroactively annulled. This woman is now permitted to remarry without a get - divorce document, or any witnesses that her husband has died, G-d forbid. This is scandalous! They claim to be Orthodox, yet they think they have invented something that all the Torah scholars of the previous generations did not think of. Were there not agunot during the times of the Gemara, Rishonim, and Achronim?

Nobody else thought of this solution, it is only they who were given the wisdom to arrive at this solution, this can only be described as: havel havalim. If marriage were viewed in terms of a vow then perhaps such an argument would be valid. Business transactions, however, and marriage is viewed as a transaction between man and woman, cannot be annulled with this reasoning. If, for example, a man were to purchase a house and later come to the seller claiming that had he known war would break out and therefore the government would appropriate the house for their purposes he would not have purchased the house, this would not invalidate the sale. Only a sale made under false pretenses that existed during the time of sale is invalidated - a subsequent war which broke out does not invalidate the sale. What they in effect are doing is invalidating Kiddushin based on circumstances which arose at a later stage - outrageous!

Even here in Yerushalayim there once was an individual who set up an office in the American Consulate. He busied himself by giving a get to all agunot. You may wonder how it is possible for a man other than the husband to issue a get, his answer was: "zachin le-adam shelo befanav" "One may act for a person in his absence to his advantage" (Ketubot 11a). Amazing! He discovered that divorce is a zchut and therefore the above principle can be applied resulting in the ability for a woman to get divorced without the knowledge or consent of her husband. Impeccable logic! As clear as two plus two. If he really believes that divorce is a zchut, then he would say that it is forbidden to marry a woman not in the presence of the husband, a point discussed in the Node B'Yehuda, because marriage must be a chov - a disadvantage. What people decide for themselves is just terrible, the tragedy of it all is that we are talking about people who call themselves Orthodox.

We already know that the Conservative and Reform tailor the Torah for their own convenience. They permit marriage between Jew and non-Jew, there is equality of the sexes in the marriage ceremony. They perform the ceremony together with a priest to insure the marriage is "kedat Moshe veoto haish" - lehavdil elef alfei havdalot. What they are doing is terrible! The Reform movement did not begin with such a radical breach of the Torah. The Torah scholars of the time, however, foresaw what it would lead to over a period of time. It begins with slight changes in Jewish customs that perhaps are not of great significance. If the goal in instituting these changes is to uproot the mitzvoth in the Torah, anything can result. Chazal's purpose in instituting laws was to bring us closer to the Torah. Their goal is to bring the Torah closer to them, to make it more convenient. This is the basic difference between Chazal's enactment's and the destruction they are causing.

NEGATING OURSELVES FOR THE WORD OF HASHEM

When Hashem revealed Himself to Moshe, Moshe asked "mi anochi" "who am I" (Shmot 3:11), I am of no significance, it is only the word of Hashem that rules. Avraham Avinu claimed that he was "afar vaefer" "dust and ash" (Bereishit 18:27), Moshe Rabenu felt that he was not even that. Anyone following in the path of Moshe negates his wishes for those of Hashem - he knows Who Hashem is, he feels that he is as insignificant as the dust of the earth. Pharaoh is the opposite - upon hearing the words of Hashem, he asks "mi Hashem" "who is Hashem" (Shmot 5:2). Pharaoh knows who he is, after all "li yeori vaani asitini" "Mine is my river, and I have made myself powerful" (Yechezkel 29:3), but he does not know who Hashem is. These are the methods these people employ, they do not negate their wishes for Hashem's but rather, G-d forbid, attempt to negate Hashem's wishes for their own. This is precisely what Bilaam tried to do: Hashem instructed him: "lo taor et haam" "You shall not curse the people" (Bamidbar 22:12), he felt that he could succeed in forcing and convincing Hashem to curse the Jewish nation, G-d forbid. This is the way of the Reform and Conservative, it is not our way.

THE PROHIBITION AGAINST GOING TO SECULAR COURTS

The religious population is also guilty of stumbling many times. When it comes to private sins, everyone is guilty at one point or another: "ki adam ein tzaddik baaretz asher yaase tov velo yecheta" "for there is no man so wholly righteous on earth that he always does good and never sins" (Kohelet 7:20). In addition, many go to the secular courts for matters of litigation. This is in violation of what Rashi says at the outset of Parsha Mishpatim "ve-ele hamishpatim asher tasim lifneihem" - means "lifneihem velo lifnei akum" "before them and not before gentiles". Going to non-Jewish courts constitutes a chillul Hashem, how much more so does going to courts staffed by Jewish judges who rule against the Torah constitute a chillul Hashem? After all, the non-Jews are not obligated to observe the Torah. We mentioned earlier that one of the Rishonim is of the opinion that the non-Jews are performing a mitzvah by establishing their own legal system. If non-Jews wish, they can decide that a shomer sachar - one paid to guard an object, is liable for damage caused under extenuating circumstances - onehs and is absolved of any guilt if the object were stolen or lost. We are forbidden to establish such laws! It is only the Beit Din HaGadol that has this power on a temporary as-need basis. The Beit Din cannot randomly establish laws - they cannot suddenly declare that effective immediately we are no longer a state that is governed by halacha, we are governed by Turkish, British, or any other laws. This is nonsense! We have no right to do this! It is a tremendous chillul Hashem to turn to secular courts, certainly ones that are Jewish and do not follow the laws of the Torah. People do so out of lack of knowledge or because they feel they can get more money this way, after all: "hakesef yaane et hakol" "money answers everything" (Kohelet 10:19).

Even under circumstances where the halacha would permit turning to a secular court, a litigant would not be permitted to collect money that the Torah would not have awarded him otherwise.

DIN TORAH IS FOR OUR OWN BENEFIT

If people only realized how much better the din Torah is for them, they would not refuse to appear. It is theoretically possible, for example, that a din Torah would absolve one from paying damages caused by one's car. A possible scenario where this would be the case would be if the incident were to occur on Shabbat. Being that the person is liable for desecrating the Shabbat, he would not be required to pay the damages because of: kim lei bidraba minei "he is liable only to the more severe of the two penalties" (Makkot 16a) and desecrating the Shabbat is a more severe infraction than the damage caused. There are circumstances where kim lei bidraba minei applies during the week as well. If the accident happened while he was being chased he would also not be held responsible. In reality, in a case of kim lei bidraba minei one would be permitted to use the secular courts - but this is not the time and place to discuss that issue. In general, money that would not be awarded by a din Torah one may not accept from a secular court.

In a secular court one can collect damages for liable caused by someone who called him a bad name, he must of course prove that he is not deserving of that name. If he can prove it, then the secular courts will award him for damage caused. The Torah, on the other hand, does not award damages for these circumstances. Anyone collecting money awarded him by a secular court for this, is no better than a thief and deserves being called a bad name! The Torah is Hashem's system of justice, nothing else is! A non-Jew can speak of human justice, for a Jew this is insufficient, only the Torah's idea of justice is the correct one.

We spend time trying to uncover the logic behind these laws. The Gemara provides us with such svarot such as why it is that an ox that does not habitually gore - a tam - pays only half damages whereas one that is in the habit of goring - a muad - pays full damages. We do not for a moment believe that we understand the depth of the Torah and that what our logic dictates is law. We have no choice but to use our minds. What is found in the Gemara does not plumb the ultimate depths of the Torah. Firstly, there are many additional Kabbalistic reasons for mitzvoth that we do not fully understand. Even those well-versed in Kabbala do not attain a full understanding. In this world we are only human and cannot possibly hope to achieve a complete understanding of the Torah. In the Next World we will be able to accomplish more than we can in this world, but even in the Next World no human being, including Moshe Rabenu, will ever be able to attain a total comprehension of the Torah.

LEARNING TORAH BRINGS US CLOSER TO HASHEM

Involvement in Torah study brings us closer to Hashem, to the Divine wisdom - each of us on our own level. R' Yisrael Salanter explains that Torah study influences us in two ways. The first way is the positive effect it has on our soul, it makes no difference whether one is studying Shabbat, Baba Kama, or Zevachim. The second way is more natural. One studying a particular mitzvah pays more careful attention to its details when observing the mitzvah. One who studies the laws of Shabbat will now be more careful not to transgress one of the thirty-nine categories of prohibited work, muktza, etc. One who studies the laws of nezikin - damages, will be more careful not to cause damage to another. According to one opinion in the Gemara "One who wishes to be devout should fulfill the words of Nezikkin" (Baba Kamma 30a). Many people take tremendous precautions not to have damage caused to them, it is more important to be careful not to cause damage to others!

We need only look outside today to see what happens to people who are far removed from the Torah - stabbings, drugs, murder - terrible things! The sad part is that some of these people do not even care, when told their son is on drugs, the response is as long as he does not become a dos (a pejorative Israeli term for a religious Jew) then he may do as he pleases. They would rather he smoke drugs ("samim" in Hebrew) than recite the "pitum haketoret" - "kach lecha samim" "take yourself spices" (Shmot 30:34). The situation is terrible, but we witness on a daily basis how parents are willing to have their child involved with any crazy Indian or Chinese guru as long as he does not become a dos, G-d forbid. The result is murder and other terrible sins. The Torah refines us, I am not saying that there are no problems in the religious community, but the problems that exist are on a much smaller scale.

The Torah's laws and legal system serve to refine our soul. It provides us, thank G-d, after one hundred twenty years in this world, with the opportunity of cleaving to the G-dly light of the Next World.

Why Masechta Bava Kama? A Lesson From Parshas Shoftim

Introduction

Our Yeshiva, along with many others, is about to begin a new Zman in which we will be studying material that has little relevance to practical halacha. We will be learning Perek Hachovel with few relevant halachos due to the fact that Beis Din today does not possess the power to levy fines. Why then are we spending such an inordinate amount of time on this material? Netiv Aryeh is not the only Yeshiva learning material of this nature - Mir in Jerusalem will also be learning Baba Kama, while YU plans to learn Baba Basra. Someone wishing to learn Gemara with more practical relevant halachic issues would be better off learning Masseches Brachos or Shabbos. Nonetheless, we devote vast amounts of time and energy to learning Nashim and Nezikin which by and large have less practical halachic value. Is this proper use of our time? Do Chazal not teach us that our learning should emphasize "Lilmod al mnas laasos"--"to learn in order to know how to act"? To fully answer this question would require much more space than a dvar Torah being sent via email permits. However, perhaps we can try to shed some light on this question from a basic lesson which emerges from the opening mitzvah of Parshas Shoftim of appointing judges in Eretz Yisroel.

Mitzvah of Appointing Judges: Only in Eretz Yisroel?

The Rambam (Maimonides) mentions the mitzvah of appointing judges in Eretz Yisroel and makes no mention of any obligation to do so outside Eretz Yisroel. The Ramban (Nachmonides) in his commentary in the beginning of Parshas Shoftim questions this view. Firstly, the Rambam's approach appears counter-intuitive. Does Jewish Civil Law not apply outside of Eretz Yisroel as well as within the boundaries of Eretz Yisroel? Are Batei Dinim not needed to teach and enforce the laws equally in Eretz Yisroel as in Chutz La'Aretz? Furthermore, the Gemara explicitly writes that there is a mitzvah to employ judges in Chutz La'Aretz (see Megillah 7a).

Avi Ezri's Explanation of Rambam's Distinction Between Eretz Yisroel and Chutz La'Aretz

HaGaon HaRav Shach zt"l (Avi Ezri--Sefer Shoftim) offers an interesting answer to Ramban's objections. He suggests that Rambam is of the opinion that there is a mitzvah to appoint judges in Chutz La'Aretz only when there is a practical need for it, to service the Jewish communities of the Diaspora. However, the mitzvah to appoint Judges in Eretz Yisroel is not dependent upon necessity, rather whenever there is Jewish sovereignty over a city in Eretz Yisroel there is a requirement to establish a court whether or not that city actually is in need of a court. (This theory can be buttressed with the observation that the Gemara in Megillah describes the mitzvah of appointing Judges in the Diaspora in every district that has Jews (Bchol Plach Uplach), while with regard to Eretz Yisroel the Gemara writes that it is required in every city (Bchol Ir V'ir). When Rambam mentions the mitzvah of employing Judges in Eretz Yisroel he is referring to the requirement of having Judges in every city in Eretz Yisroel, a mitzvah which does not apply in Chutz La'Aretz.

What is the rationale behind this distinction? It appears that the appointment of judges in Chutz La'Aretz is purely for pragmatic reasons - if there is a sufficiently large Jewish population to necessitate Jewish legislation, then there is a mitzvah to appoint judges. However, in Eretz Yisroel the requirement is not purely pragmatic - a city without a Beis Din is lacking in its identity as a Jewish City in Eretz Yisroel. According to this approach a Beis Din is necessary not only to practically legislate but also to create a moral compass both in educational and emotional terms, for the entire city. The Judges, as role models, set a tone so that the landscape of every city in Eretz Yisroel includes a body whose standards should be impeccable and a place where the Amittah Shel Torah is always addressed.

Judges: Eretz Yisroel = Theoretical Gemara: Spiritual Growth

Just as Judges in every city define and affect the character of every city in Eretz Yisroel, so too the study of abstract Talmudic concepts are critical in defining and affecting the individual even if the study is not practical in nature. The most critical component of Talmud Torah is not to develop a more accurate observance (as important as this may be); rather it is to transform the spiritual persona of the individual while he delves into the moral values, even if they are not practical, to transform his world view and affect his personal existential identity. When Chazal taught that we should learn "Lilmod al mnas laasos" (learn in order to know how to act) they were referring not only to practical halacha, they were referring to a study that is so replete with meaning that the individual could not help but be transformed by its study.

A story is told that some of the faculty at Rav Moshe Feinstein's Yeshiva (MTJ) suggested that the first year Gemara curriculum be changed from Elu Metzios which deals with the abstract laws of lost items to Brachos where the students can study laws which relate to their daily routine. Rav Moshe called a meeting and said that he was opposed to the switch. He articulated a very important lesson in both Chinuch and Talmud Torah. Rav Moshe said "You think that the most important part of Chinuch is to teach a child the Halachos of Krias Shma since it is the mitzvah of accepting the yoke of heaven--- that's not the most critical component of Chinuch. The most important thing for a child to do is to repeat over and over again "These objects one has to give back because we cannot take something that belongs to someone else".

Rav Moshe emphasized that the more subtle and sublime lessons of Talmud Torah can be more significant than learning for pragmatic reasons even if the motivations to learn practical halacha are sincere and spiritual. That is also the lesson of Batei Dinim in Eretz Yisroel whose existence too is not based purely on practical considerations.

(I elaborate a little more on the traditional approach to studying Gemara Biyun despite its "lack of relevance" in a Sichas Mussar on YUTorah entitled Yisro's Judges and Learning Gemara.)