Monthly Archives: December 2016

Parshat מסעי Bamidbar 35:12 – The Rule of Law

Numbers 35:12 – These cities shall serve you as a refuge from an avenger, so that the murderer shall not die until he stands in judgment before the congregation.

Gemora Makot 8b – We learn in a beraitha that Rabbi Akiva said, “From which verse do we know that if judges in a court should see a person kill another person, they must hand the accused over to a different court for judgement? The answer is from the verse that states “until he stands in judgement”. This verse implies ‘until he stands in judgement before a different court’”.

Torah Temimah Colloquial Translation on Note #17:

It is possible to say that this beraitha is the same beraitha that is mentioned with slightly different phraseology in a variety of places in the Gemora. That beraitha reads as follows: “[if] a court sees a person kill aonther person, all of the judges become [instead] witnesses…and a witness is not able to be a judge [in a given court case.]

So according to our beraitha, this ruling is a “decree from above” and is dictated in writing by the verse above. If this is so, then the logical explanation that ‘a witness cannot be a judge in the same case’ is merely stated as giving a logical reason for the heavenly decree.

Note that in Gemora Rosh HaShannah 27a, the reason is given for Rabbi Akiva’s opinion from another set of verses in Numbers 35 (24-25) where it states “…and they will judge the one who smote…and they will save him from the avenger…”. From the juxtaposition of those verses, the Gemora concludes that it is the obligation of the judges to seek ways to find a person innocent. However, in the case where the judges actually saw the person commit the murder, they would be incapable of seeing any reason to find him innocent.

Thus, it would result from this discussion that there are two reasons why a court that witnesses a murder must turn the accused over to a different court. 1. Witnesses cannot also be judges 2.  If they were judges they would not be in a position to find or seek any reason to find the person innocent. However, since a law cannot have two sources, the principle source for this law is from our verse which states that it is a “decree from above”. The reason for this decree would then be that a witness cannot also be a judge. The reason for this would be the verse ahead (35:24) alluding to the idea that the judges must seek reasons for finding the person innocent. The Tosafot in Rosh Hashanah on this section of Gemora strive to reconcile these various, different sources. However, according to the way we explain it above, the answers to these questions are clear.

Look also in the Rambam in Chapter 1, Halacha 5 regarding the laws of a murderer. There he writes that a murderer may not be executed by the witnesses until he is brought before a court [and they try him according to the rule of law].  The Rambam then cites our verse above as support. The Kesef Mishah (a famous commentary on the Rambam) then brings support for the Rambam’s position. We, however, mention in our previous note, that the Kesef Mishna’s opinions are difficult to defend.

It is more appropriate to state that the Rambam was focusing on the our beraitha. It is somewhat difficult to understand why the Rambam did not precisely quote the law as stated in the beraitha that we have quoted per the Gemora in Sanhedrin that the witnesses/judges will need to bring him before a different court. Perhaps one can say that the Rambam was focusing on the idea mentioned by Rabbi Akiva that a witness cannot become a judge. This concept, however, is mentioned by the Rambam in the laws of witnesses in Chapter 5, Halacha 8.

Notice also that the point that the Rambam makes that our verse is the source for the law that it is forbidden for the witnesses to execute the murderer before he is tried [according to the rule of law] in a court can be explained. Behold, even though this case is only discussed in Gemora Sanhedrim [which does not quote our verse], however, it is obvious the logic applied here is a fortiori . [If judges who see a murder are not allowed to take the law into their own hands, how much more so would this be true of two ordinary individuals who see a murder committed.) The Rambam often relies on a particular verse to support a clear, simple law even though the Gemora does not explain that verse in exactly the same way. We have explained this several times in our commentary. See in particular, the note in Parshat Shmini, Chapter 10, verse 6.

Editor’s Note: The idea that religious judges who, themselves, witness a murder cannot be judges in that particular case is, I think, an important idea for our times. Religious judges who have no limit to their power is extremely ill-advised.

Parshat וישלח – Genesis 35:22 – Regarding Reuben’s Possible Sin and Question and Answer on a Gemora

Genesis:  35:22 – And it came to pass when Israel sojourned in that land, that Reuben went and lay with Bilhah, his father’s concubine, and Israel heard [of it], and so, the sons of Jacob were twelve.

Gemora Shabbat – 55b – Rabbi Shmuel bar Nachmani said in the name of Rabbi Yonatan: Anyone who says that Reuven sinned is completed in totally mistaken. This is shown in the verse itself when it states that the sons of Jacob were twelve. This phrase means that the brothers were all equal to each other.

Torah Temimah Colloquial Translation on Note #16:

Regarding the apparent contradiction of Rabbi Shmuel bar Nachmani statement and the plain meaning of the verse, I already commented in the previous note.

Further, the phrase “is completely mistaken” informs us that one who says that Reuben sinned makes an error. However, there is no prohibition or punishment for making such a statement.

Even though we have a general principle that “one who tells over the very intimate matters of a scholar will suffer purgatory”, one must say that this does not apply to Reuben since the Torah itself does not cover up it up. Rather the Torah describes the event in a manner that would indicate a sin. Also, there is an opinion that there was an actual sin. Therefore, Rabbi Shmuel says only that one is mistaken in explaining this matter, but nothing more than that.

[On a separate matter], it is appropriate to comment on verse 20 where it states that Jacob built a monument to mark Rachel’s grave. Yet in the Gemora, in Moed Katan 5a, there is an extensive discussion regarding whether marking graves is a rabbinic decree or whether its source is from the Torah. It is astounding that in the discussion this verse is not mentioned showing that in the Torah, Jacob built a monument at Rachel’s grave. Further, in Midrash Rabba, this monument is explicitly described as a marker.

Nor would it be accurate to say that we do not learn halachos from the Torah prior to the Giving at Mount Sinai. We already know that we derive many matters from the conduct of our forefathers [Abraham, Isaac and Jacob]. For example, we derive the times for prayer, the seven days of mourning and various other matters. The difficulty is further emphasized by the fact that in Gemora Nidda 57a, the conclusion is reached that marking graves is actually a rabbinic law. There also it does not mention our verse.

A possible answer is that in these sections of the Gemora, the sages are trying to find the source of marking graves not only in the case where there is a burial of a complete, known person, but also even where there is just a limb or a single bone.  This would include a situation where it is not known who the dead person was. Even in such a case, the law is that a marker should be put up in order to mark the place and for people to avoid ritual impurity. The source for this law is not from our verse. [The rabbis concluded that this law is a rabbinic decree.] Indeed we find that this whole section of the Gemora deals with ritual impurity.]  Consequently, it makes sense that the rabbis found a source for this law from the verse in Ezekiel 39:15: “And when they that pass through shall pass and see a human bone, they shall build a sign next to it until the buriers bury it in the Valley of Hamon Gog.“ This verse would apply even to a single bone. See also what is explained in the verse in Exodus 18:20 “…and you shall make known to them the way they shall go…”

See also what it says in Jerusalem Talmud Tractate Shekalim 2:5 where is states as follows: “Rabbi Shimon Ben Gamliel said ‘one does not build a monuments for righteous people because their deeds are their remembrance.’”  Apparently this contradicts the verse where Jacob built a monument for Rachel. Further we find that, in fact, we do build monuments for righteous people who have died. See also Midrash Rabba where this same general principle of not building monuments for the righteous is mentioned. Also there it does not address this apparent contradiction. Some have written that this general principle was only the opinion of an individual person and we do not follow this ruling.

In my opinion, however, we don’t need to state that perhaps it is only a single person’s opinion. Rather, it is possible that the intent of this general principle is to state that if the intent of the monument is so that people will remember the name of the righteous person and his greatness, then truly there is not need for such a monument. It is the righteous person’s words and deeds that are their memorial. If, however, the intent of the memorial is for those who are still alive so that they will know the place of his[/her] physical burial so that they may go there to says prayers at a propitious time or so that they may go there to ask for forgiveness from him/her for any wrong that they may have done to him/her. This would be similar to what is written in Tractate Chagiga 22b: “Rabbi Yehoshua went and prostrated himself at the graves of the House of Shammai and said, I crave your pardon, bones of Beth Shammai. If your unexplained teachings are so [excellent], how much more so the explained teachings.’”  In the intent of marking the grave is for these types of purposes, certainly this is done. Thus, we can understand why Jacob built a monument for Rachel. Jacob saw through the divine spirit that in the future travelers on the way to exile would pass through the place where she was buried so Jacob built a memorial there so that they would see it and pray there.

 The important distinction is whether the memorial is being built for the deceased person or for the living.  Therefore, one can say that one who commands [in his will, etc.] that no monument be erected for him, then this distinction would be pertinent. If the monument is, essentially, for the deceased person then one would have to comply with his command that no monument be built.

This is similar to the teaching in Tractate Sanhedrin 46b where it discusses the situation of one who has commanded that there be no eulogy. There, in the discussion, it mentions that if the purpose of the eulogy is for the deceased person, then one must comply with his command.  If, on the other hand, the eulogy is for the sake of the living, then then there is no obligation to comply.

So too we find a case where the inheritors would be called upon to pay for something for the honor of the deceased.  Let us say, for example, the deceased was not so profoundly righteous that his deeds by themselves would be ample honor for him. This person set forth in his will that the family should erect some monument in his memory.  If this monument is for his personal honor, his benefit,  the inheritors must pay for it, as they must give honor to their father.  If, however, the deceased’s request was for the family’s benefit–so that they would easily recognize his burial place–they may counter that they do not need a monument.  Perhaps they can easily find the spot, or perhaps they do not intend to visit the burial place.  In any event since the expense would be for their own benefit, they may refuse to build a monument.

Translator’s  Note: In this long note, I appreciated the observation in the beginning taking a lenient view of one who says that Reuben did, in fact, sin. The second part of this note reflects the Torah Temimah’s determination to understand and clearly explain questions that he has faced on sections in the Gemora. Thank you to Rabbi Chanoch Slatin for helping me on the part I was stuck on!