מלך כשופט ומחוקק (חלק ב') - דרשות הר"ן א'

You shall appoint magistrates and officials for your tribes, in all the settlements that the LORD your God is giving you, and they shall govern the people with due justice. You shall not judge unfairly: you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. Justice, justice shall you pursue, that you may thrive and occupy the land that the LORD your God is giving you.

I understand the plain meaning of the verse as follows: It is accepted that men need judges to judge between them, for in their absence (Avoth 3:2) "One man would swallow the other alive" and the world would become corrupt. And every people requires some form of government, the sage going so far as to say: "Even thieves recognize the necessity of justice within their society." And Israel needs this just as the other nations do. But they also need judges for an additional reason — to enforce the laws of the Torah and to punish those liable to stripes or to judicial death penalties, whether or not their transgression is detrimental to society. And, certainly, these two considerations entail two functions, respectively: one, punishing a man in accordance with true justice; the other (though he not be liable to punishment in terms of true justice), punishing him for the benefit of society and the exigencies of the hour. The Blessed One assigned each of these functions to distinct functionaries. He commanded that judges be appointed to administer true, righteous judgment. This is the intent of "and let them judge the people a righteous judgment." That is, the verse indicates the function and jurisdiction of these judges, saying that the purpose of their appointment is to judge the people with a judgment that is true and righteous in itself, and that their jurisdiction does not extend beyond this function. And because the needs of society are not completely served with this alone, G-d provides for the appointment of a king.

We shall explain this further in respect to one of the aforementioned considerations. We learned (Sanhedrin 40b): "The rabbis taught: 'The witnesses are to be cross-examined in the following manner: Do you recognize him [the defendant]? Did you warn him and did he acknowledge the warning? Did he commit the crime knowing it was punishable by death? Did he kill right after you had warned him?…'" Unquestionably, all of these are prerequisites for a "righteous judgment." For why should a man be killed for a transgression which he did not know to be punishable by death? This explains the necessity for his acknowledgment of the warning and for all of the other things mentioned in that baraitha. This is the true, righteous judgment in itself, that was assigned to the judges. But if law-breakers were punished in this context alone, the structure of society would break down completely, for, in the absence of the fear of punishment, the number of murderers would dramatically increase. Therefore, for the well-being of society, the Blessed One mandated the appointment of a king, as stated in this parshah (Deuteronomy 17:14-15): "and when you come to the land… place a king over you…," this constituting a mitzvah to appoint a king, according to the tradition of our sages of blessed memory (Sifrei, Sanhedrin 20b). And the king can punish without prior warning as he deems fit for the good of the kingdom. We find, then, that the appointment of a king serves a common purpose for Israel and for the other peoples who require a societal structure, and that the appointment of judges serves a distinct purpose for Israel, as stated: "and let them judge the people a righteous judgment." That is, the purpose of the judges and the area of their jurisdiction is the administration of judgments that are righteous and true in themselves.

Pursuing this further, in light of the fact that our Torah is distinguished from the ethical codes of the nations by mitzvoth and chukim [statutes], it follows that these mitzvoth and chukim have nothing whatsoever to do with societal structure at all, but that their sole purpose is to effect the investiture of the Divine Immanence within our nation and to cause it to cleave to us. Whether this is apparent to us (as in the case of the sacrifices and all that transpires in the Temple) or unapparent (as in the case of the statutes, whose reasons were not revealed), there is no doubt that they are oriented to effecting this investiture and this cleaving — although their manner of doing so defies reason. And our ignorance in this regard is not at all surprising, for if we are ignorant of the reasons for so many natural phenomena (whose existence can, nonetheless, not be denied), then how much more ignorant should we be of the reasons for the investiture and cleaving to us of the Divine Immanence! And our holy Torah is herein distinguished from the ethical codes of the nations, which have nothing to do with such things, but only with the regulation of society.

Therefore, I hold (and it should, indeed, be believed) that just as the statutes do not enter at all into the societal area but are exclusively confined to the investiture of the Divine Immanence — in like manner, the judgments [mishpatim] of the Torah enter, to a great extent, into this last area, so that they are divided, as it were, between effecting the investiture of the Divine Immanence among us and furthering the societal common good. And it is possible that they are more greatly oriented to the more sublime area than they are to the ordering of society, for this last function is completed by the king that we appoint over us. The function of the judges and the Sanhedrin, however, is to judge us with judgments which are true and righteous in themselves, and which cause the divine Immanence to cleave to us, whether they do or do not completely fulfill the societal objective. It is therefore possible [paradoxically] that some of the judgments and laws of the nations will be found more effective in furthering societal order than some of the laws of the Torah. We lose nothing thereby, however, for whatever is left incomplete in this regard is completed by the king, and, of course, we gain great eminence thereby, for the laws of the Torah, being righteous in themselves (as stated: "and let them judge the people a righteous judgment"), ennoble us through the investiture and cleaving of the Divine Immanence. It is for this reason that the chief and most select of the judges would stand in the place where the Divine Immanence manifested itself, this being the idea behind the presiding of the Men of the Great Assembly in the chamber of hewn stone [lishkath hagazith]. And it is for this reason that our sages of blessed memory said (Avodah Zarah 8b): "When they [the members of Sanhedrin] saw that murderers had multiplied, they said: 'Let us exile ourselves from our place, so as to put into effect (Deuteronomy 17:10): "And you shall do according to the thing that they tell you from that place" — this teaches us that the place is the critical factor'" [so that in exiling themselves from their place, they suspended the death penalty]. And all that our sages have said in this regard is to be understood along the same lines, viz. (Sanhedrin 7a): "Every judge that judges truly causes the Shechinah to reside in Israel, as it is written (Psalms 82:1): 'G-d stands in the congregation of the Almighty; He judges in the midst of the judges.'" And, similarly, (Shabbath 10a): "Every judge that judges truly — even one moment in the day — is regarded by Scripture as if he were a partner to the Holy One Blessed be He in the creation, it being written here [in respect to judging] (Exodus 18:13): 'from morning until evening,' and there [in respect to the creation] (Genesis 1:5): 'and it was evening and it was morning.'" This "partnership" is an allusion to what we have been saying — that just as in the creation the Divine effluence manifested itself in the terrestrial world, it being the source of all that was created, so, every judge that judges truly draws down that effluence, whether or not his judgment completely fulfills the societal requirements. For just as the sacrifices, though entirely outside the realm of natural cause and effect, made manifest the Divine effluence, so was this effluence drawn down by the judgments of the Torah, though these judgments had to be supplemented with the edicts of the king to guarantee a well-ordered society. We find, then, that judges were appointed to administer the judgments of the Torah alone, judgments righteous in themselves (as stated: "and let them judge the people a righteous judgment"), and the king was appointed to supplement these judgments with whatever was required for a well-ordered society and dictated by the needs of the hour.

And do not challenge me with (Sanhedrin 46a): "It was taught: R. Eliezer ben Yaakov said: 'I have heard that beth din administers stripes not according to the Torah — not to transgress what is written in the Torah, but to make a fence for the Torah'" — which seems to imply that beth din is appointed to legislate in accordance with the exigencies of the times. It is not so. In those times when there were a Sanhedrin and a king in Israel, the Sanhedrin would judge the righteous judgment alone and would not institute anything beyond this unless they were empowered by the king to do so. But when there was no king in Israel, the judge embodied two functions, that of the judge and that of the king, as we find (Ibid 49a): "Amasa expounded 'but' ['ach'] and 'only' ['rak']; he went and found the rabbis studying Torah, and said: "It is written (Joshua 1:18): 'Every man who rebels against you [Joshua]…' I would think [that Joshua had absolute power] even [in respect to nullifying] words of Torah. This is ruled out by (Ibid): 'Only ['rak' — without extending this unlimited power to Torah] strengthen yourself and be courageous.'" This shows Joshua to have had the powers of a king even though he was not a king [but a judge]. And our sages of blessed memory, likewise, apply (Deuteronomy 33:5) "And there was a king in Israel" to Moses [although he was not a king].

And do not challenge me with (Sanhedrin 46a): "It was taught: R. Eliezer ben Yaakov said: 'I have heard that beth din administers stripes not according to the Torah — not to transgress what is written in the Torah, but to make a fence for the Torah'" — which seems to imply that beth din is appointed to legislate in accordance with the exigencies of the times. It is not so. In those times when there were a Sanhedrin and a king in Israel, the Sanhedrin would judge the righteous judgment alone and would not institute anything beyond this unless they were empowered by the king to do so. But when there was no king in Israel, the judge embodied two functions, that of the judge and that of the king, as we find (Ibid 49a): "Amasa expounded 'but' ['ach'] and 'only' ['rak']; he went and found the rabbis studying Torah, and said: "It is written (Joshua 1:18): 'Every man who rebels against you [Joshua]…' I would think [that Joshua had absolute power] even [in respect to nullifying] words of Torah. This is ruled out by (Ibid): 'Only ['rak' — without extending this unlimited power to Torah] strengthen yourself and be courageous.'" This shows Joshua to have had the powers of a king even though he was not a king [but a judge]. And our sages of blessed memory, likewise, apply (Deuteronomy 33:5) "And there was a king in Israel" to Moses [although he was not a king]. It is also possible that everything connected with the mitzvoth of the Torah, whether in the category of righteous judgments or in that of temporary exigency was relegated to beth din, whereas in the realm of the relations between man and man, what involves righteous judgment alone was relegated to beth din (as written: "and let them judge the people a righteous judgment"), but anything beyond that was relegated to the king and not to the judge. Two benefits would result from this: one, completely perfect — the investiture of the Divine Immanence and its cleaving to the people; the other, the perfecting of the societal order, which, if not completely perfected by the judgments would be so perfected by the king. It is seen, then, that the greater part of judgment and its essence, was relegated to beth din, and only a relatively minor part to the king. And this was the sin of Israel in requesting a king, a matter which many of the earlier authorities find very perplexing, viz.: if they were commanded to appoint a king, as it is written (Deuteronomy 17:14): "And when you come to the land… and you will say: 'I will place a king over me…'", this being one of the three things they were commanded to do upon entering the land, according to our sages of blessed memory (Sanhedrin 20b) — then what was their sin in requesting a king?

It is also possible that everything connected with the mitzvoth of the Torah, whether in the category of righteous judgments or in that of temporary exigency was relegated to beth din, whereas in the realm of the relations between man and man, what involves righteous judgment alone was relegated to beth din (as written: "and let them judge the people a righteous judgment"), but anything beyond that was relegated to the king and not to the judge. Two benefits would result from this: one, completely perfect — the investiture of the Divine Immanence and its cleaving to the people; the other, the perfecting of the societal order, which, if not completely perfected by the judgments would be so perfected by the king. It is seen, then, that the greater part of judgment and its essence, was relegated to beth din, and only a relatively minor part to the king. And this was the sin of Israel in requesting a king, a matter which many of the earlier authorities find very perplexing, viz.: if they were commanded to appoint a king, as it is written (Deuteronomy 17:14): "And when you come to the land… and you will say: 'I will place a king over me…'", this being one of the three things they were commanded to do upon entering the land, according to our sages of blessed memory (Sanhedrin 20b) — then what was their sin in requesting a king? In my view it was this: they desired that the administration of justice between man and his neighbor be preponderantly in the hands of the king. This is the intent of the verse (I Samuel 8:4-5): "And all the elders of Israel gathered together and they came to Samuel to Ramah, and they said to him: 'You have grown old, and your sons have not gone in your ways; now place a king over us to judge us as all the nations.'" I understand this as follows: The Jews saw societal good as being better served by a king than by judges. Therefore, they said: "You are old and cannot judge anymore, and your sons are not worthy of investing us with the Divine Immanence, for they do not walk in your ways. Therefore, it is fit that we have a king and that we be judged through him." This is the intent of "Place a king over us to judge us as all the nations." And they were greatly mistaken in this. For the sons of Samuel, though they were not so saintly as their father, were still not perverters of judgment, as stated by our sages of blessed memory (Sabbath 55b): "R. Shmuel b. Nachmani said in the name of R. Yonathan: 'All who say that the sons of Samuel sinned are greatly mistaken, as it is written (I Samuel 9:1-3): "And it was when Samuel became old… and his sons did not walk in his ways" — they did not walk in his [exceptionally saintly] ways, but they did not sin. How then, am I to understand (Ibid 2): "And they turned aside after profit, and they took bribes, and they perverted judgment"? They did not emulate the example of their father. For Samuel, the righteous one, would make the circuit of all the places of the Jews and judge them in their cities, as it is written (Ibid 7:16): "And he made the circuit of Beth-El, Gilgal, and Mitzpeh, and he judged Israel." But his sons did not do thus, but sat in their cities in order to increase the income of their deputies and scribes.'" And since they did not, for all of this, pervert judgment [in the literal sense], their judging of the Jews in accordance with the Torah would still have resulted in Israel's being invested with the Divine Immanence, but the Jews at that time gave greater priority to governmental considerations. If they had simply asked "Place a king over us," or if they had specifically requested a king to lead them in their wars, there would be no sin in this, but, to the contrary, it would be a mitzvah. Their sin lay in asking: "Place a king over us to judge us as all of the nations," the judgment to come from the king and not from the judges of the Torah. This interpretation is substantiated by Samuel's reaction (Ibid 8:6): "And it was evil in Samuel's eyes when they said: 'Give us a king to judge us.'" It is not simply written "Give us a king," for if they had said only this, it would not be evil in his eyes. What disturbed him was "to judge us." and because of this G-d said to Samuel (Ibid 7): "It is not you they have rejected, but they have rejected My rule over them." That is, they prefer natural government to Divine Immanence.'"

And when Samuel reproved them, they did not abandon their original intent, but only slightly ameliorated their request, saying that they desired a king not for judgment alone but for leadership in war. This is the intent of (Ibid 20): "And we, too, will be as the other nations, and our king will judge us, and he will go out before us, and he will fight our wars." And, therefore, Samuel rebuked them afterwards, saying (Ibid 12:16-17): "Even now, stand and see the great thing that the L-rd will do before your eyes. It is the time of the wheat harvest today; yet I will call upon the L-rd and He will bring thunder and rain." That is, know that you have erred in choosing a king on the basis of the assumption that your natural needs will be better served thereby. For it is not so, but, to the contrary, one who cleaves to the L-rd can alter the natural order according to His will. For it is the time of the wheat harvest today, a time of no rain within the natural order; but, by means of the Divine Immanence that cleaves to me, I will alter the natural order and He will bring thunder and rain. Therefore, you should have chosen what would have been likely to invest you with the Divine Immanence — the justice of the judges, concerning which it is written: "and let them judge the people a righteous judgment" — more than the justice of the king, who judges according to his will. For this is the difference between the judge and the king, the judge being more subservient to the justice of the Torah than the king. It is for this reason that the king was exhorted and commanded to have a second Torah scroll with him (Deuteronomy 17:18-20): "And it shall be, when he sits upon his throne of kingdom, let him write for himself… and let it be with him… that his heart not raise itself above his brothers and that he not depart from the mitzvah…" That is, because the king sees that he is not so subservient to the laws of the Torah as the judge he requires additional exhortation not to depart from the mitzvah right or left and not to vaunt himself above his brothers because of the great powers given him by the Blessed One. But the judge does not need all of these exhortations because his powers are confined to the judgments of the Torah alone, as written: "and let him judge the people a righteous judgment," and he was already exhorted not to turn from these judgments in any way whatsoever, viz. (Ibid 16:19): "Do not pervert judgment."