Parashat Shoftim

“You shall act in accordance with the instructions given to you and the ruling handed down to you; you must not deviate from the verdict that they announce to you, either to the right or to the left” (Deuteronomy 17:11).

This verse is one of the foundations of Judaism and upon it all practical Halacha is based. Therefore it behooves all who seek knowledge and truth to look deeply into the words which are written. All our words here will be citations from our rabbis and we will see, as clearly as the sun at noon, that the Written Torah is as clay being molded by the hands of the rabbis, as an ax being wielded by the hands of the sages, and we do not live according to the Written Torah at all, but by the opinions of our rabbis.

On this verse our rabbis do indeed rely and use it to make the Torah worthless. As is written in Sifri Devarim, paragraph 154, and brought by Rashi: “You must not deviate from the verdict they announce to you is a negative commandment. Right and left–even if they show you that right is left and left right, listen to them.” One who does not heed the sages violates a negative commandment, even if they give an interpretation, from their own opinion, which contradicts that which is written in the Torah.

This is indeed the opinion of the rabbis, as we will bring below, that the Torah which was given at Sinai and spoken by the mouth of the Divine has been handed over to the sages’ interpretation. And from this verse the rabbis drew the authority to determine Halacha and obligate the public, even if they say that right is left. We find that what is written in the Torah is of no consequence at all; it is what the sages determine that matters. We also find that the whole purpose of the Torah which was given by G-d is to give authority to the sages to impose commandments, laws, and punishments. (It is not for nothing that the Torah scroll is covered and placed in the Holy Ark, taken out only for public readings. No one turns to it with halachic questions and consults it as they do the Shulchan Aruch, for example.) And do not think that the interpretation the sages give was handed down from Sinai, that is, from the Glory; it is from their own opinion they said it, as we have already proven inPamphlet 8. And to strengthen our words we will quote the words of Nachmanides on Deuteronomy 17:11, “And do not say, ‘How will I eat this completely forbidden tallow?’ or ‘How will I kill this innocent man?’ but say: ‘This is what He who gives the commandments commanded me, that in all the matters concerning His commandments I should do as those who stand before Him in the place He had chosen instruct me, for upon the significance of their opinion He gave me the Torah, even if they err’…That is why the Scripture gave us the law to obey the Supreme Beit Din which stands before G-d in the place He had chosen, in everything they tell us interpreting the Torah – be it an exegesis they received through tradition from Moses and from the Divine, or anything they say from their understanding of the Scripture’s meaning or intention – for according to their opinion He gives us the Torah, even if they seem to you mistaking right for left.”

It is clear; Nachmanides wrote, “upon the significance of their opinion He gave the Torah.” Do not say, “How will I kill this innocent man?” Think about this: in the Ten Commandments it is written, “Thou shalt not kill,” and we have already written on the portion of Reeh that Chazal permit killing, if the times require it, even one who rides a horse on the Sabbath. According to the Torah he is not liable to the death sentence, and one who kills him is clearly a murderer, and one who plans to kill him is subject to the laws of a pursuer. Even so, Chazal permit killing him, based on the requirements of the times, for upon the significance of their opinion was the Torah given.

Thus Nachmanides wrote in the first root of Sefer Hamitzvot: “The negative commandment of ‘do not deviate’ only speaks of what was stated explicitly in the Torah, such as things drawn by analogy or by precedent and by the rest of the 13 methods through which the Torah is elucidated, or from the significance of the wording of the Scripture itself, and everything that was received as halacha given to Moses at Sinai, for if they see that this thing is forbidden or that one is permitted by the Torah, according to the exposition of what is written or its interpretation or halacha from the mouth of the Divine through Moses, and a person sees the opposite, he must give up his opinion and believe in what they tell him.”

In Pamphlet 6 we cited the opinion of the Katzot HaChoshen in his introduction. “The Torah was not given to the Heavenly angels, it was given to man who has human intellect, and G-d gave him the Torah in his vast mercies and kindness according to the dictates of human intellect… G-d chose us and gave us the Torah according to the dictates of human intellect, even if it is not the truth”!

The issue of “the snake’s crucible,” Baba Metzia 59b, is a great proof for the words of the Katzot HaChoshen, that the determination is based on human intellect, even if it is not true, for in the argument between R’ Eliezer and the sages: “a Heavenly voice came and said, ‘Why do you bother R’ Eliezer, when the law is always as he says?'” Even so R’ Joshua stood up and said, “It is not in the Heavens, for the Torah has already been given at Sinai. We do not pay heed to Heavenly voices.”

In Pamphlet 8 we quoted Rabbi Yom-Tov Lippman Milhausen in Sefer HaNitzachon, section 321, “for He, the Holy One, blessed be He who gave us the Torah, made it dependent on the wisdom of the sages according to what was seemly to them and about this it is said that ‘Torah will come out of Zion.'”

According to what was seemly to them, even if they change and distort the plain meaning of the Scripture, for that seemed correct to them, as we wrote on the portion of Mishpatim, citing the explicit words of the GRA in his bookAderet Eliyahu: “but Halacha had superceded the Scripture…and in a few other portions of the Torah. It is one of the greatnesses of the Oral Torah that it is tradition given to Moses at Sinai, [but still] is like sealing-wax which can be shaped. For it is said (Makkot 22b), ‘How foolish are most of those people, who rise for a Torah scroll but do not rise for a scholar. For while in the Torah scroll it is explicitly written “he will give him forty [lashes]”, the sages, on their own, lessened it by one’.” From the Gemara itself we learn that a scholar is greater than the Torah, for the Torah commands forty lashes and the scholars supercede the Torah and set thirty nine! It’s exactly that way–not only is it the way of the Oral Torah to change the Written, but this is its greatness. Understand this well.

And in the Jerusalem Talmud, Tractate Sanhedrin, chapter 11, halacha four, they brought a wonderful parable which illustrates what we have written, “A prophet and an elder–to what can they be compared? To a king who sent two of his agents to another country. About one he wrote, ‘if he does not show my seal and my mark do not believe him,’ and about the other he writes, ‘even if he does not show my seal and my mark believe him’ thus about a prophet it is written that he should give signs or proofs, but a sage, ‘according to the verdict that they announce to you’.”

For this is the command: Sages do not require signs and proofs, but you are obligated to do all that they tell you.

And when we say that you must heed the words of the sages, we do not mean only the early rabbis or the Sanhedrin, for this is what is written in Tractate Rosh Hashanah 25b, “Jepthe in his generation was as Samuel in his generation, to teach you that even if the least person is appointed leader of the community then he is as the greatest of people. It says, ‘And you shall go to the priests and the Levites and the judge who is in  those days.’ Is it conceivable that one would go to a judge who did not live in his time? One can only go to the judges of his own times.”

As the Tur in Choshen Mishpat 25 wrote: “Jephte in his generation was as Samuel in his generation, and all you have is the judges who lived in your own time.”

The greatest proof of this is the words of the Chazon Ish in KuntressHashiurin, section 39, which we cited in the portion of Beshalach. After he brought two opinions on an important halachic matter, the size of a beitza, a halacha which has practical applications for Torah prohibitions and makes one liable to bring a sin offering or to the death penalty: “After the Halacha has been determined by the Noda BiYehuda and the Vilna Gaon and Rabbi E.Z. Margaliot and the Chatam Sofer, and the instruction spread over, it is as though a beit din determined the measurement for all of Israel based on their deductions and the competence of a beit din.”

The words of the Chazon Ish are very clear, that the rabbis of each generation are the ones who determine the laws, even if they may make one warrant a death sentence.

Here is another example that the Torah was given to the sages to determine according to what seems fitting to them, from the laws of the intermediate days of festivals (chol hamoed), as brought in Tractate Hagigah 18a: “On the intermediate days of festivals one is forbidden to do work. How do we know this? … ‘Six days shall you eat matzot and the seventh day is an assembly for G-d.’ Just as the seventh day is an assembly (on which work is forbidden), so are the six days days of assembly. As the seventh day is an assembly on which all work is forbidden, so are the other six days assembly days on which work is forbidden? It means to say: ‘and the seventh day is an assembly’–on the seventh day all work is forbidden, on the six other days not all work is forbidden. The Scriptures did not say this, but left it to the sages to tell you on which day it is forbidden and on which day it is permitted, which work is forbidden and which work is permitted.” The matter is clear to any reasonable person, that Chazal’s interpretation is not learned from the simple text of the Scriptures but belongs to what seems fitting to them, and even so they explained that the Scriptures were given to the sages to determine what was forbidden and what was permitted on the intermediate days of festivals.

And know that not only are we obligated to do as the sages say, even if they say right is left, but a sage who does not do as they say is liable to death; it is called the rules of zaken mamre, as brought by Maimonides in the Laws of the Disobedient, chapter four, halacha one: “One who disagrees with the Supreme Beis Din on a matter whose intentional commission is punishable by death (caret) and whose unintentional commission one must bring a sin offering, be it something they forbid and he permits or something they permit and he forbids, he is punishable by death, even if what he says is from tradition and he says ‘I received this from my rabbis’ and they say ‘this seems reasonable to us.’ Since he discusses the matter with them, if he acts or teaches to act [according to his opinion] he is liable.” This is really incredible: he received a tradition from his rabbis and the sages judged based on what seemed to them reasonable, yet he, who has tradition on his side, must listen to their words which they have said from their own judgement; if he does not, he is punishable by death.

And since we always say what we find difficult about a topic, it becomes clear here that the individual sage must do as the sages say, even if he is certain that he is correct and they are in error, so why then is he (the individual sage who does as the Beit Din says and is found to have done something, unintentionally, wrong) liable to bring a sacrifice? As brought by Maimonides in The Laws of Unintentional Sins, chapter 13, halacha five: If the Beit Din orders him to eat the entire fat of the stomach, and one of the audience knows that they erred and the stomach fat is forbidden and they ate it because they were told to, for they knew they are commanded to listen to the Beit Din, even though they err, the one who ate must bring a sin-offering.” Maimonides’s words are taken from the Gemara in Horayot 2a, “The Beit Din instructed them and one of then knew that they erred, or a student who is worthy of giving instruction, and went and did as they said…is liable [to bring a sacrifice],” and in 2b the Gemara explains: why is he not considered one who has intentionally sinned? He did know it was forbidden. The Gemara answers: “Since he knew it was forbidden and he erred in the commandment of listening to the words of the sages” (i.e. he erred in his supposition that it is a commandment to obey the sages even if they err). The matter is puzzling, for he really must listen to the sages. See it for yourself. In the portion of Vayikra we showed that from the plain text of the Scripture the tallow of the tail is forbidden for eating, while according to the sages the tallow of the tail is permitted. What would happen if one of the sages saw in the Torah that it is forbidden and he sat at a ceremonial meal with his rabbis, and they were served as a main course the tallow of the tail–how should that sage act? If he eats, though the sages are mistaken, he should bring a sacrifice. If he doesn’t eat he is a rebellious sage. He’s in trouble if he eats, and in trouble if he doesn’t…This gemara also contradicts the Sifrei, which says that one must listen to the sages, even if they say right is left and left is right, and follows what the Jerusalem Talmud says in Tractate Horiyot chapter one, halacha one: “Is it possible that when they tell you that right is left you would obey them? Of this it is said, ‘to go left and right’ – only when they tell you right is right and left is left.”

We will return to our topic, and before we conclude we should cite the Chatam Sofer in his responsa, part three (Even HaEzer 1), section 37: “There are sexual relationships which are detailed in the Torah and there are those forbidden by Chazal as a fence [around the Torah] and there is no dividing between them, for they are all from the Torah, as brought by Maimonides in the Laws of the Disobedient, chapter one, halacha two: ‘One of the things they learned from the Divine…it says, ‘the verdict that they announce to you’ there are the decrees and edicts…’ this is what Maimonides said, and there is no division between a Torah prohibition and a prohibition instituted by the rabbis, for anyone who violate them rebels against G-d and his Torah, and the only distinction [between the laws of the Torah and of the rabbis] is by the punishment due the violator.”

From all written above, you see the power of the Torah was given to the sages and they and only they (and not the Written Torah) determine they way for us to follow. And who determines that this is how it should be? They themselves do, they who determined for us that they have the authority to do that, for they interpreted that we must listen to them, even if they say right is left. They themselves determined that they may uproot the plain text of the Torah. In the portion of Vetchanan we showed that Chazal are the ones who determine what one may add to the Torah and what one may take away.

And if you say: If so, why should we do as the sages obligate us? There is a simple answer and we have already said it in the essay on prophecy. It is well known that every culture needs a system of laws to maintain and live normal and reasonable lives, and the public chooses, one way or another, the people who determine the laws, even if they are not acceptable to every single person, and since the public spirit changes with the times, each generation must decree decrees and laws appropriate to the times and situation. This is what they meant by “Jepthe in his generation was as Samuel in his generation.”

If so, what is the difference between the system of halachic laws and any modern legal system? The difference is in the source of authority for determining law and its enforcement. While in a democratic country the public chooses its representatives to determine their laws, and the legislators (the legislative branch, like the Knesset) draws from this mandate the authority to change and determine laws (and even to enforce them using an operative branch, that is the police, and to use the laws to judge by in the judicial branch, the courts of law), the Jewish legal system draws its authority straight from G-d. He is the legislator and He is the judge and He is the One who punishes. You should know that religion places G-d in the center while a democracy places Man in the center. G-d does not seek the agreement of anyone to His laws, but in a democracy laws are only accepted based on the authority of people, on a majority or a unanimous decision.

The sages came along and determined that all their words, including words that are subject of a disagreement, are the words of the Living G-d, that “both this and that are the words of the Living G-d.” They went and took for themselves the right to enforce G-d’s laws (for G-d does not really bother to enforce these sorts of laws) and they determined that G-d is the one who judges and gives punishment through them. And thus, with the spirit of G-d floating above and the rabbis in each generation determining G-d’s word below, Judaism succeeded in surviving for a long while, even though all these things are only human inventions in every jot and tittle, as we have repeatedly shown. Understand what we wrote here, for they are important matters.

Words of True Knowledge