Tuesday, February 21, 2006

Mishpatim (Rambam)

“Before Them”: the Sanhedrin

Notwithstanding that the commandment to set up a system of courts of law only appears explicitly in Parshat Shoftim (Deut 16:18-20; cf. 17:8-13), it is seen by Hazal and Rashi as already implicit in other passages in the Torah. Thus, the opening verse of this week’s portion, “These are the laws which you shall place before them” (Exod 21:1) is seen as implying an addressee—a body of leaders/ judges/ teachers—who are instructed to “place” the laws before the people:

Why is the portion of the laws placed next to that concerning the altar? To teach you that you should place the Sanhedrin adjacent to the Temple. “That you should place before them.” …You might think that it is sufficient to repeat each chapter or law two or three times until it is fluent in their mouths, and that you need not trouble yourself to make sure that they understand the reason for the things. Therefore it says, “that you should place before them”—like a table that is set and ready for one to eat from it. “Before them.” [i.e., Before the judges] and not before the laymen (based on Gittin 88).

Rashi says things in a similar vein in the opening of Devarim, reading Deut 1:18, for example, as alluding to ten procedural rules governing the running of courts. We may infer from all this the central role played by the system of courts and judges. There is a special aspect to these laws: whereas most of the mitzvot are concerned with specific actions—i.e., direct commands as to what one should or should not do—here we are concerned with an overarching framework. In addition to a set of rules and laws, society requires certain institutions to oversee social order, to enforce the laws, to adjudicate disputes, and to punish malefactors. This need arises, in part, because no matter how detailed a law code, there are always questions that arise, ambiguities in which there is need to decide which of several possible rules applies. Moreover, due to the inevitable complexity of a law concerned with all aspects of human life, not every person is able to know it, but only those who have both highly developed intellect, and the time to devote their lives to its mastery. But more than that: there is an inherent need for someone—a person or group of persons—to somehow represent or embody the law, a body to whom the ordinary person can turn when there is need to settle disputes, or to clarify for the person’s own peace of mind what is the proper, ethical, lawful thing to do in a given situation. These people must be fair-minded, objective, disinterested; a kind of spiritual-legal elite, who are morally and ethically above the crowd.

We see from all this that Judaism does not believe in anarchy, in Rousseau’s “noble savage,” in the idea, popular at various junctures in the modern age (it was one of the central motifs, not only in 18th century France, and in pre-revolutionary Russia, but in the Hippie counter-culture of the 1960’s, which had its own utopian vision), that man left to his own devices is inherently good, and that it is only societal pressure that makes him bad.

Indeed, this idea is so central in Judaism, that “dinim,” i.e., the setting up of a judicial system, is seen as a lynchpin of the Noachide code. This rudimentary system of laws for the non-Jewish world consists of six proscriptions, together constituting the basis of a universal morality, plus a seventh mitzvah: to set up courts to enforce and adjudicate the other six (Hil. Melakhim 9.14).

This entire subject is, if one may put it thus, the obverse side of Maimonides’ personality. We have written at some length in recent weeks about Rambam’s theological and philosophical interests, of his celebration of an Abraham-like passionate love of God, of his positing a direct relationship of man to God as the height of his spiritual word, of his description of prophecy being preceded by a kind of mystical–ecstatic experience. But there is another, no less important side to his thought and his own public role, one logically prior to these lofty ends: namely, his concern for the welfare and order of society.

The final book of the fourteen deals with social order. Sefer Shoftim, “The Book of Judges” (not to be confused with the biblical book of the same name), centers around the two central social institutions of ancient Israel, the great courts and the monarchy—the former enjoying pride of place at the opening of this book. Quite close to the beginning of this treatise—which details not only the rules governing the Sanhedrin, but that of all the courts, local, regional, and that for all Israel—Rambam describes the high standards demanded of the judges. Hilkhot Sanhedrin 2.1:

One does not appoint to the Sanhedrin, be it the great one [i.e., of 71] or the smaller ones [i.e., tribal courts of 23], anyone but wise and discerning people, uutstanding in wisdom of the Torah, possessing extensive knowledge. And they must be somewhat learned in other wisdoms, such as healing, mathematics, astronomy, astrology, and the ways of the necromancy and magic and practitioners of witchcraft and other pagan vanities and the like. So that they will know to judge them..

We see here that Maimonides has a broad cultural vision, one which clearly acknowledged the importance of non-Jewish sources of wisdom as well (see our discussion a few weeks ago, in Bo, about astronomy, for one example). He took a definite stance supporting a concept of universal knowledge, based upon human reason rather than revelation—this, as opposed to a sequestered, anti-secular approach, found in some other Jewish thinkers, and unfortunately loudly trumpeted today by some sectors of the self-proclaimed “Torah world.” Admittedly, in Rambam too this knowledge entails a functional reason, as stated in the second half of the sentence: things that he considered nonsense and beneath contempt, such as various forms of magic and superstition, still need to be known by for their juridical functioning.

Alongside intellectual depth and breadth, he demanded certain personal qualities of the judges as well. Thus, in §7:

The court of three…. Each one of them must have these seven qualities: wisdom, humility, fear of God, hatred [i.e., indifference to] money, love of Torah, love of the people for them, and a good reputation….

Why does he use the rather awkward phrase, “love of the people for them,” rather than the simpler “love of people” (ahavat ha-beriyot)? A person may feel in his heart that he is filled with love for others, but deep down be in fact a misanthrope. The true test is whether others are drawn to him. The Hafetz Hayyim (Rabbi Israel Meir ha-Kohen), one of the greatest sages of Eastern Europe during the first decades of twentieth century, was not only a great talmid-hakham, the author of many important books both in halakhah and Jewish ethics, but a model of piety and, most of all, a beloved folk figure. People who met him once in their lives still talked about it half a century later.

Another important point in Rambam’s understanding of the Sanhedrin is his insistence that the commandment of setting up courts, not only the great Sanhedrin but also the small Sanhedrin, and even the local courts of three, is only applicable in Eretz Yisrael (1.2). This is so, because semikhah, the Rabbinic ordination that empowers the judges to function fully according to the role given them by the Torah, and which represents an unbroken chain of tradition, of authority passed on from one sage to another going back to Moses, can only be granted in the Land of Israel. Without it, such functions as sanctifying new months and leap years, imposing the fixed monetary penalties prescribed by the Torah (kenasot), not to mention the death penalty for capital crimes and the power to issue fixed edicts for the entire Jewish people, become dead letters. Thus, what we know today as the office of Rabbi, with its implied authority, the whole institution of “ordination,” is a novellum, an invention introduced in medieval Ashkenaz to assure some kind of communal order, and halakhically inferior to the “true,” ancient semikhah. (See Arukh ha-Shulhan, Yoreh Deah 242.§§28-31; and cf. my study, Kuntres Semikhat Nashim, in HY II; Beha’alotkha)

All this is well-known. But Rambam seems to play down the role of contemporary Rabbinic and Torah authority more than most; thus, in his decision of Torah authority in Hilkhot Mamrim, he does not even mention the possibility that rabbis in the post-Sanhedrin era have the authority to issue takkanot and gezerot, ad hoc edicts for the welfare of Jewry. (Compare on this point, for example, Sefer ha-Hinukh, §492, who specifically states that the commandment to listen to the Great Court applies, in latter days, to the rulings of the gadol hador, the “great sage” in each generation. We shall return to these sources in greater depth, with God’s help, in HY V: Shoftim.) Moreover, he almost totally ignores the whole system of Jewish self-government in the Diaspora—Rabbinic courts, parnasei kehillot, international Jewish leadership, both lay and rabbinic, etc. (although he does make passing reference to the Exilarch in Babylonia (Reish Galuta) as a kind of heir of the ancient monarchy; see Sanhedrin 4.12-14).

An interesting question, whose proper discussion would take us too far afield, is whether these positions in any way reflect Maimonides’ own personal biography. He was critical of much that passed for leadership in his day, and was involved in no small degree of conflict, both with the Exilarchate and the Gaonate, and with the Rosh ha-Yehudim, the official Head of the Jewish community in Egypt. As an outstanding intellect who knew his own worth, Maimonides did not easily bear fools, especially those who had achieved their position through accident of money and family ties.

On the other hand, as we have seen, Maimonides greatly idealizes the Sanhedrin—as he did all the ancient institutions—and greatly longed for the reinstitution of the ways “as of old.” He was in fact involved in an attempt to revive semikhah. Thus, in Sanhedrin 4.11, he writes:

It seems to me that if all the Sages in the Land of Israel were to agree to appoint judges and to ordain them these would be ordained [i.e., with the authentic semikhah], and they would have the right to judge laws of kenasot [i.e., those fixed monetary penalties stipulated by the Torah] and they might ordain others… but the matter requires decision.

In his day the matter never got off the ground, but it periodically resurfaced in Jewish history: most notably in the days of R. Jacob Berab in 16th century Eretz Yisrael, and in modern times upon the creation of the State of Israel (see J. L Maimon’s book on the subject, Hiddush ha-Sanhedrin bizeman hazeh).

I would like to conclude with one more short passage. I mentioned previously (HY V: Miketz-Hanukkah II) an insight of the late Prof. Yaakov Levinger. It is well known that each of the fourteen books of the Yad ends with a festive peroration, in which Rambam goes beyond the specific halakhic subject with which he is dealing, to comment on broader moral and spiritual issues. Levinger observed that these perorations also serve as a link to the subject matter of the next book. In some cases the connection is obvious; in other cases, it requires no little examination and reflection to find the link. I would like to examine the passage that immediately precedes Hilkhot Sanhedrin: namely, the end of the “Laws of Inheritance,” with which Sefer Mishpatim, “The Book of Torts,” ends. Hilkhot Nahalot 11.12:

Even though the guardian does not need to render accounts, as we have explained, he needs to render accounts with himself, and to be most scrupulous [in handling the money of orphans]. And he must beware of the father of these orphans, who rides upon the clouds, as is said, “Lift up a song to He who rides upon the clouds [Yah is his name, and exukt before Him]. The father of orphans [and protector of widows, God in his holy habitation”; Ps 68:5-6].

The point made here is a simple one: for the truly pious, God–fearing person, it does not matter whether his books are subject to an external audit in order for him to be scrupulous about not misusing funds that have been entrusted to his care, because he knows that there is One who is higher than any CPA, or even than Income Tax: namely, He who is the Father of orphans and widows.

It seems to me that the connection of this passage with the laws of the courts and judges is that their function, too, is ultimately to serve as the father of orphans and protector of widows. Rav Soloveitchik makes this very point in an important passage in his seminal essay, Halakhic Man:

Halakhic man cannot be cowed by anyone. He knows no fear of flesh and blood. For is he not a creator of worlds, a partner of the Almighty in the act of creation? And precisely because he is free from fear of flesh and blood, he neither betrays his own mission nor profanes his holy task. He takes up his stand in the midst of the concrete world, his feet planted firmly on the ground of reality, and he looks about and sees, listens and hears, and publicly protests against the oppression of the helpless, the defrauding of the poor, the plight of the orphan. The rich are deemed as naught in his view. He is the father of orphans, the judge of widows.

My uncle, R. Meir Berlin [Bar-Ilan], told me that once R. Hayyim of Brisk was asked what the function of a rabbi is. R. Hayyim replied: “To redress the grievances of those who are abandoned and alone, to protect the dignity of the poor, and to save the oppressed from the hands of his oppressor.” Neither ritual decisions nor political leadership constitute[s] the main task of halakhic man…. The actualization of the ideals of justice and righteousness is the pillar of fire which halakhic man follows…. (Halakhic Man, p. 91)


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