סדר שפטים

שפטים ושטרים תתן לך בכל שעריך אשר יהוה אלהֶיך נתן לך לשבטיך ושפטו את העם משפט צדק

Judges and officers shall you appoint in all your gates . . . and they shall judge the people with just judgment. 

Deuteronomy 16:16

Rashi comments: appoint judges who are expert and righteous to render righteous judgment

Rashi meant that Moses was not commanding the judges to render righteous judgment but rather was commanding those who would select the judges to choose righteous and upright judges who could be expected to judge righteously. And his comment was appropriate, because immediately afterwards Moses says to the judges, “לא תטה משפט לא תכיר פנים ולֹא תקַח שחד” (you shall not pervert justice, you shall not show partiality, and you shall not take a bribe). However, the question arises: Why did Moses not discuss the judges or their qualifications at all? He should have said: “שופטים ושוטרים צדיקים תתן לך” (appoint for yourselves righteous and upright judges). Then, after their qualifications had been enumerated, it would have been appropriate to add “ושפטו את העם משפט צדק” (and they will render just judgment). Why did Moses leave this implicit rather than state it explicitly?

Our master explained that precisely by saying that they should appoint judges and officers, Moses was assuring them that the judges would render just judgment, because, in saying “appoint judges” he meant to say “but not a king.” The prophet Samuel also responded bitterly when the people asked for a king, because a king would not care about the will of the people and his heart would have no concern for them, but would just do as he pleased. And who would say to the king: “what are you doing?” A king need not obey the laws and statutes that govern the state. Rather he issues decrees right and left as his heart desires. Not so are the judges and officers appointed by the citizens of the state! For they do not rule forever, and their reign is not perpetual, but lasts only as long as the people wish them to rule. Nor do their children inherit their positions, as does the son of the king who succeeds his father and is coronated with or without the consent of the people. Judges are therefore obligated to render just and upright judgments according to the laws of the state. And that is why a judge is preferred by the Eternal to a king, a monarch, and a sovereign. And that is why Moses said: “שופטים ושוטרים תתן לך” “You shall appoint judges and officers,” not a king. In doing so, you can be certain that they will judge the nation justly, and that, unlike a king, they will not do what their hearts desire without protest. (שביבי אש)

כי תבא אל הארץ אשר ה א נתן לך וירשתה וישבתה בה ואמרת אשימה עלי מלך ככל הגוים אשר סביבתי שום תשים עליך מלך אשר יבחר ה א בו מקרב אחיך תשים עליך מלך לא תוכל לתת עליך איש נכרי אשר לא אחיך הוא

When you come to the land . . . and shall say, I will set a king over me . . . . You shall set him king over you, whom the Lord your God shall choose; one from among your brothers shall you set king over you; you may not set a stranger over you 

Deuteronomy 17:14-15

See the Ramban who was at pains to explain why Moses admonishes “לא תוכל לתת עליך איש נכרי” (you may not put a foreigner over you) after saying that the Eternal will Himself choose the king. If so, the decision about who shall be king is in the hand of God, and He will not choose a foreigner.

Our master explained that there was never an absolute commandment from the Eternal to choose a king. It was only if the people demanded a king saying ” אשימה עלי מלך” (I would set a king over me) that they were allowed to institute a monarchy. And the reason that the Eternal did not choose a king, but only judges and officers, is that, as we wrote above, a judge stands under the rule of the people who chose him, and only by virtue of their authority did he became the leader. It is therefore incumbent upon him to uphold righteousness and justice. However, a king chosen by the Eternal is elevated above the entire people whom he rules. And if so, he inevitably stands above the laws that are written in the Torah and need not make decisions in accordance with those laws, but may decide according to his own wishes. For the king may violate rules and cannot be resisted.

So should the people become lawless departing from the ways of morality, and should the judges, governing in accord with the precepts of the Torah, of justice and righteousness, lose the capacity to restrain the people unwilling to be disciplined by these precepts, then it may become necessary for them to install a king who, breaking every upraised arm, can impose law and order upon them with brutal discipline for their transgressions. As the one chosen by the Eternal to stand in the breach, his fear and awe will be upon them, for he will show no pity in meting out punishment and will do with them as he sees fit. Indeed, his authority over the people will be upheld only if they believe that the king, having been chosen by God to reign over them, need not treat them according to the Torah, whose ways are the ways of pleasantness. For his selection by God raises him above them so that he may do whatever he pleases with them. As a result, the people will be too intimidated to disobey the king who is empowered to punish them with cruelty and fury. This is the meaning of “שום תשים עליך מלך אשר יבחר הא בו” (you shall set over you him whom your Eternal God will choose) from which the Sages deduced: “שתהא אימתו עליך, ובמה שתאמין אֲשֶׁר יִבְחַר ה”א בּוֹ” (that fear of him be upon you. Why will it be upon you? Through your belief that your Eternal God has chosen him).

This is in contrast to the judges about whom it says “תתן לך” (you shall appoint for yourself), because they are selected by the people, unlike the king who is chosen by God through a prophet or the Urim and Thummim. Therefore “שום תשים” means that the fear of him should be upon you owing to your knowledge that the Eternal has chosen him, so that his power and his authority come from God and not from you.

Moses then proceeds to warn them not to say that we will not ask God and His prophets to choose a king, but instead we will choose a king from another nation of whom, because he is “איש נכרי” (a foreigner), we will be very fearful, who will administer punishment without pity. If we appoint a foreign king to discipline us, we will not need a king chosen by the Eternal. Concerning such an idea, Moses says: “you may not do so, for one from among your brothers you shall set as king.”

Afterwards, Moses gives a warning to the king and says (Deuteronomy 17:18): “והיתה כשבתו על כסא ממלכתו” )and when he sits upon the throne of his kingdom) i.e., when, all the evil-doers in the land have been eliminated, his throne is stabilized and his reign secure, then, he, too, should conduct himself uprightly to do justice and righteousness, as it is written “וכתב את משנה התורה הזאת על ספר” (he shall write for himself in a book a copy of this law). And from that time, he should see what is written in the Torah and act accordingly “לבלתי סור מן המצוה ימין ושמאול” (that he not deviate from the commandment either to the right or the left). For after he has smitten the wicked with the rod of his mouth and restored peace to his realm, he will no longer be obliged to act beyond the limits of the law. (שביבי אש) 

תמים תה’ עם ה’ אלקיך

You shall be blameless before the Lord your God 

Deuteronomy 18:13

Rashi comments: walk before Him wholeheartedly, put your hope in Him and do not attempt to investigate the future, but whatever it may be that comes upon you accept it wholeheartedly, and then you shall be with Him and become His portion

However, the Ramban explains that we should direct our hearts toward Him alone and we should seek after the future from His beloved prophets and from the Urim and Thummim. It seems that he inferred this from the verses below (Deuteronomy 18:17): “אליו תשמעון נביא מקרבך מאחיך כמני יקים ה’ אלקיך מקרבך” (your Eternal God will raise up for you, a prophet like me from among you, from your brethren – to him shall you listen(. This seems to suggest that we may seek after the future and ask what will happen to us, but may do so only from a prophet. Rashi, however, interpreted this verse differently, understanding “תמים תהיה” (you shall be blameless) to mean that you shall not attempt to search future at all. Only then can one be “blameless” with the Eternal.

Although the verses below (Deuteronomy 18:14-15): “כי הגוים האלה וכו’ אל מעננים ואל קסמים ישמעו ואַתה וכו’ נביא מקרבך מאחיך כמני יקים לך וכו'” (For these nations, which you shall displace, listened to soothsayers, and to diviners; but as for you, your Eternal God has not allowed you so to do. Your Eternal God will raise for you a prophet from your midst, from your brothers, like me; to him you shall listen).

This verse contrasts the “soothsayers and diviners,” who may not be consulted, with a prophet of God, who shall be heeded, as this prophet speaks in the name of the Eternal concerning one of the commandments. Thus, even if a prophet should, under some extraordinary circumstance (הוראת שעה), command you to act contrary to the law, as Elijah did at Mount Carmel, you must listen to him. And by saying that these nations give heed to soothsayers and to diviners, Moses meant that even though these nations have soothsayers and diviners who claim to be able to foretell the future, no knowledge of the future is brought to them except through their machinations of secret arts, magic and sorcery. Only then can they grasp, as did the magicians of Egypt and their ilk, some fragment of the future. However, we, the children of the living God, must have nothing to do with this. Rather, the Eternal will communicate to His prophets and they will tell us what we must know. But we may not search after the future. Thus, Moses said: “From this fact you can understand that the Eternal does not want you to search after the future. While the nations have soothsayers and diviners who perform their various machinations to grasp some fragment of the future, to you the Eternal has given prophets who will prophesy in His name when He confers His spirit upon them at a the desired moment. But He has not empowered those prophets to perform any action by which they can bring prophecy down to themselves. You therefore must be blameless with your Eternal God and listen only to a prophet speaks to you in the name of the Eternal.”

And the words of Rashi appear more reasonable than those of the Ramban, because it is written below (Deuteronomy 18:16-19):

“ככל אשר שאלת מעם ה’ אלקיך בחרב וכו’, נביא אקים להם וכו’, ונתתי דברי בפיו וכו’, והיה האישׁ אשר לא ישמע” (This is just what you asked of your Eternal God at Horeb on the day of the assembly, when you said: “Let me not hear the voice of the my Eternal God, or see this great fire any more, lest I die” . . . I will raise up for them a prophet like you from among their brethren; and I will put My words in his mouth, and he shall speak to them all that I shall command them. And whoever will give heed unto My words which he shall speak in my name, I will him to account.)

From this passage it appears that the Scripture is speaking about a prophet of the law who is giving prophecy in the name of the Eternal that they should do this or do that, but not about a prophet who will reveal what is hidden. For it is written in (Deuteronomy 29:29) “הנסתרות לה’ אלקינו והנגלות לנו ולבננו עד עולם לעשות כל דברי התורה הזאת” )the secret things belong to our Eternal God; but the things that are revealed belong to us and to our children forever, that we may do all the words of this law.) This means that whatever is revealed to us from the secret things is revealed only so that we may do our duty, and to warn the people what will befall them should they not take heed to fulfill the Torah. (שביבי אש)

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