Rabbi Bernie Fox
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 s’kilah – 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.
Our pasuk explains 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.
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.
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; their knowledge is second-hand and based upon the testimony of the witnesses. It is reasonable that those parties who are the primary source of all knowledge of the crime perform the execution. These are the witnesses.
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.
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.
The Commandment to Appoint a King
Moshe relates to Bnai Yisrael the commandment of appointing a king. The simple interpretation of Moshe’s words is that the nation is commanded to appoint a king over itself. At all times the nation must have a leader. This interpretation is supported by an earlier incident in the Torah. Hashem tells Moshe that the time has come for his death. Moshe asks Hashem to appoint a new leader. Moshe contends that it is imperative for Bnai Yisrael to have strong leadership. Hashem responds by appointing Yehoshua. In this incident, the Torah clearly acknowledges the importance of strong political leadership. Therefore, it is reasonable to assume that our passage is addressing this need and creating the institution of kingship. Maimonides accepts this interpretation of our pesukim. In his Mishne Torah, he writes that Bnai Yisrael became obligated in three commandments when they entered the Land of Israel. One of these mitzvot is to appoint a king. Maimonides quotes our passage as the source for this commandment.
However, there is a problem with this interpretation of our passages. After the death of Moshe, the nation was lead by a series of judges and prophets. The last of this series was the prophet Shemuel. The nation approached Shemuel and asked him to appoint a king. They explained that they wished to be led in a manner similar to the surrounding nations. These nations were ruled by kings. Bnai Yisrael wished to also be ruled by a king. The Navi explains that Shemuel felt that the request was evil and inappropriate. This reaction seems to contradict our passage. The Torah apparently requires the appointment of a king. How can Shemuel contest the appropriateness of Bnai Yisrael’s request?
Don Issac Abrabanel suggests that our passages do not actually require the nation to appoint a king. In fact, the nation is not required to establish an institution of kingship. It is preferable to be led by prophets and judges. However, the Torah also recognizes that Bnai Yisrael may succumb to the desire to emulate other nations. Bnai Yisrael may ask for a king. Our pesukim respond to this issue. If the request is made, it is permitted to appoint a king. However, the above passages outline specific perimeters. For, example, the king must be a member of Bnai Yisrael. Abrabanel is acknowledging that our passages are a mitzvah. However, he argues that this does not create any absolute obligation. Instead, the mitzvah deals with a contingency. It provides the response, should the nation seek a king.
Rabbaynu Ovadia Sforno supports Abrabanel’s interpretation of our passages. He adds that it is essential for the nation to have political leadership. The prophets and judges provided this guidance. In some ways these leaders were kings. However, they differed from kings in one fundamental area. They could not pass their authority to their children. The prophets and judges were not royalty. The institution of kingship creates royalty. The king passes his authority to his son. This is not an ideal arrangement. The king’s son may not be fit to assume his father’s position. Yet, inevitably he views himself as vested with the right to be king.
Maimonides suggests an alternative solution. He insists that our passages are an absolute command. Bnai Yisrael was obligated to appoint a king. Nonetheless, the nation sinned in approaching Shemuel. Their request conformed to the mitzvah. However, their motivation was corrupt. They did not ask for a king out of a desire to fulfill the Torah’s commandment. Instead, they wished to escape Shemuel’s leadership. Rather than wishing to observe the Torah, they sought to escape the influence of a true Torah leader.
We are Required to Choose Knowledge over Superstition
Moshe instructs the people to reject all forms of superstition and methods of magically divining the future. He completes his admonition by telling the people to be whole-hearted in their commitment to Hashem. The commentaries provide various explanation of this pasuk. According to Rashi, Moshe is telling the nation to rely on Hashem and accept His judgments and design. Rabbaynu Ovadia Sforno explains that Moshe is instructing the people to reject all superstitious means of ascertaining the future. Instead, the nation should turn to its prophets.
Nachmanides takes the same approach as Sforno. However, he adds two important points. First, he explains the specific meaning of “whole-hearted”. He comments that this term denotes completeness and perfection. It describes a commitment free of any qualification or reservation. Second, he adds that this whole-heartedness is a positive command.
Nachmanides is teaching us that there is no room for compromise on this issue. One cannot accept the Torah and simultaneously retain belief in superstition and magic. Superstition and belief in magical predictions are inconsistent with complete commitment to the Torah. The Torah teaches us that these practices are nonsensical. We are required to guide our lives with wisdom. These superstitious practices are, therefore, antithetical to the Torah life.
The command concerning whole-heartedness requires that we make a choice between these two opposing perspectives. One who chooses the Torah outlook can no longer accept superstition. Wisdom and superstition are mutually exclusive. Conversely, belief in superstition implies doubt regarding the basic outlook of the Torah.
The Role of the Sages in Establishing Customs
This passage describes the authority of the Sages. The Sages are empowered to interpret the Torah and create new prohibitions. We are obligated to adhere to these instructions. It should be noted that this pasuk includes a positive and a negative command. The positive command is to obey the Sages. The negative command is to not deviate from their instructions.
Maimonides discusses the authority of the Sages in detail. He explains that this authority is manifested in the High Court in Jerusalem. This court is sanctioned to interpret the Torah. The High Court can also institute new decrees, prohibitions and customs.
Before analyzing Maimonides comments we must recognize an important point. Many individuals believe that customs are somewhat less binding than other laws and Torah practices. Maimonides is clearly correcting this misconception. He is explaining that we are commanded to obey all instructions of the court. He includes customs. Maimonides makes no distinction between our obligation to observe a Rabbinical decree and a custom sanctioned by the court.
Let us now analyze Maimonides’ position. We can understand the function of the High Court in the interpretation of the Torah, and in the establishment of decrees and prohibitions. However, what is the role of the Sages in establishing customs? A custom is an accepted practice or convention. It emerges from the behaviors of the people. How can the court create a custom? Furthermore, if customs do emerge from the action of the court, how do they differ from decrees and new prohibitions? Finally, we know that customs continued to emerge within Bnai Yisrael after the destruction of the Temple and the dissolution of High Court. If the court’s sanction is required to establish customs, it should be impossible for customs to develop without the authorization of the court!
In order to resolve these questions we must better understand the concept of minhag – custom. It is often assumed that any religious behavior adopted by a Jewish community is a valid custom. This is not completely true. A valid custom must be consistent with the laws of the Torah. Therefore, a minhag that lacks basis in Torah law is not valid and is not binding. In other words, a custom is a hybrid phenomenon. It emerges from the behavior of the community but it must also be consistent with the laws of the Torah.
An example will help illustrate this issue. The exact text for the Selichot prayer service surrounding Rosh HaShannah and Yom Kippur varies among communities. In many communities, the conclusion of the service includes the prayer Machnesai Rachamim. In this short prayer we beseech certain divine messenger or angels to bring our prayers before Hashem.
Maimonides explains that we must only worship and pray to Hashem. Serving any creation is a form of idolatry. This prohibition includes petitioning the ministering angels. The prayer of Machnesai Rachamim seems to violate this principle. Rav Aryeh Lev Gordon Zt”l explains that numerous Sages prohibited recitation of this prayer or altered its language to remove the problematical phrases. In this example, we encounter a behavior prevalent within a community. Nonetheless, various Sages judged this behavior to be inconsistent with Torah law. Therefore, they insisted that this was not a valid minhag and took strong measures to halt the practice.
We can now appreciate the role of the Sages and specifically the High Court in the establishment of customs. The minhag can emerge from the behaviors of the community. However, in order for the custom to become binding it must be evaluated for its consistency with Torah law. This is the role of the court. Both the community and the court have a role in the creation of the custom.
We can now answer our questions. The court has a clear role in the creation of customs. The action of this body is required to establish the validity of the practice within the framework of halachah. It is clear that custom is very different from decrees and new prohibition. Decrees and prohibitions do not emerge from the practices of the community. They are created solely through the action of the court. In contrast, minhag need not be created by the court. However, the court must determine the legal validity of the practice.
We can now explain the emergence of customs after the dissolution of the High Court. The action of the High Court is not required to create a custom. However, this Court is the ultimate authority in halachah. Therefore, only these Sages can judge the validity of a custom. With the dissolution of this Court, the authority to judge the validity of a community practice passed to the Sages of the time. These Sages now have the sanction to judge the consistency of a practice with Torah law.
 Sefer Shemot 23:8.
 Mesechet Shabbat 10a.
 Tosefot Baba Batra 8b.
 Rav Eliyahu of Vilna (Gra), Kol Eliyahu, Parshat Shoftim.
 Rav Eliyahu of Vilna (Gra), Kol Eliyahu, Parshat Shoftim.
 Mesechet Sanhedrin 45a.
 Mesechet Sanhedrin 45a.
 Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Mishne Torah, Hilchot Sanhedrin, 15:1.
 Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Commentary on the Mishne, Mesechet Sanhedrin 7:3.
 Rabbaynu Levi ben Gershon (Ralbag/Gershonides), Commentary on the Torah, p 223b.
 Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Mishne Torah, Hilchot Melachim 1:1.
 Sefer Shemuel I, 8:4-6.
 Don Yitzchak Abravanel, Commentary on Sefer Devarim, pp. 166-167.
 Rabbaynu Ovadia Sforno, Commentary on Sefer Devarim 18:14.
 Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Mishne Torah, Hilchot Melachim 1:2.
 Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer Devarim 18:22.
 Rabbaynu Ovadia Sforno, Commentary on Sefer Devarim, 18:22.
 Rabbaynu Moshe ben Nachman (Ramban/Nachmanides), Commentary on Sefer DEvarim 18:22.
 Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Mishne Torah, Hilchot Mamrim 1:2.
 Rabbaynu Moshe ben Maimon (Rambam/Maimonides) Mishne Torah, Hilchot Avodat Kochavim 2:1
 Rav Aryeh Lev Gorden, Siddur Avodus HaLev, Introduction, part 3.