The High Court
INTRODUCTION TO PARASHAT HASHAVUA
Parashat Shoftim the High Court
By Rabbi Michael Hattin
Parashat Shoftim begins with a
series of laws that are meant to regulate the national life of the people of
Immediately thereafter, the text of
the Torah returns to the topic of the judiciary, this time spelling out the role
and authority of the High Court: ""If you are uncertain how to rule in a case of
capital punishment, civil litigation or ritual law, and there is disagreement
among the regional courts, then you shall set out and go up to the place that
God your Lord will choose. You
shall approach the Kohanim or Judge that presides at that time and make your
inquiry, and they shall render a legal decision. You shall follow the ruling that they
shall declare from that place that God will choose, and you shall be careful to
fulfill all that they rule. You
shall act in accordance with the teaching that they convey and the laws that
they legislate. Do not stray from
the words that they state to you, neither to the right nor to the left. The person who rebels and refuses to
abide by the ruling of the Kohen who ministers there before God your Lord, or by
the ruling of the Judge, shall die.
Thus shall you rid yourselves of evil in
The King, the Priest, and the Prophet
This important section, describing the procedure of appeals and outlining the court's pivotal part in interpretation of the Torah, is followed by the only reference in the Pentateuch to the appointment of a monarch as the people's leader: "When you enter the land that God your Lord gives to you and you inherit it and dwell in it, and you shall say 'We want to place a king upon us, like all of the nations that are around us.' Then you shall surely appoint a king over yourselves, the person that God will choose " (Devarim 17:14-20). Some of the king's responsibilities and powers are spelled out, and he is enjoined to compose a special copy of the Torah to remain with him always, 'in order that he may read it all the days of his life, and learn to fear God his Lord, in order to observe and to fulfill all of the words of this Torah and these rules '
Subsequently, the Torah describes the unique status and special duties associated with the Levites and the Kohanim, who together constitute the priesthood. On the one hand, they are excluded from possessing tribal territory. On the other hand, the Kohanim are to enjoy a portion of all slaughtered animals as well as a share of the produce and the sheerings of the sheep. "For God your Lord has chosen him from among all of your tribes to stand and serve in God's name forever" (Devarim 18:1-5).
Finally, the text turns to the topic
of idolatry again, this time prohibiting all forms of divination,
prognostication and soothsaying.
Instead, the people of
The Character of the Jewish State
Considering the matter in general
terms, this first half of Parashat Shoftim outlines the most significant
elements that define the nature of the Jewish state: the High Court, the King,
the Priesthood, and the Prophet.
Each one of these authorities has a specific and defined set of duties
and powers. At the same time,
although these offices bear a striking resemblance to the more familiar
judiciary, legislature, executive and state-sponsored religion, the text itself
makes it clear that in the ideal Jewish state there is much more overlap between
these officials and their roles than modern democratic states tend to
tolerate. Thus the High Court may
decide appeals and points of law, but also has the exclusive authority to
transform interpretations of law into binding laws themselves. The King may function as chief
executive, but also serves as a role model of one who studies God's Torah and
abides by it. The Leviim and
Kohanim may be charged with ministering at the
In short, the customary and clear-cut division between 'church' and 'state' is less distinct in the Torah model, because in ancient Israel as well as in this ideal vision of the Parasha, civil life and religious life are harmoniously intertwined as the single overriding notion of 'life in God's presence'. Thus, some of the distinctions that we tend to draw between a man, the society of which he is part, the government whose dictates he follows, and the God Whom he worships, are presented here as constituting somewhat artificial and contrived parameters. The tendency to compartmentalize the different aspects of our lives may be a wonderful organizational tool, but can also be injurious to our complete spiritual development. Of course, no one can dispute that the western democratic model of sharp differentiation between church and state has served humanity well and minority religions very well, protecting individual rights and championing social justice. Here, however, the Parasha presents its most glaring limitation: its inherent inability to forge a comprehensive individual and national identity that can incorporate all of man's most noble aspirations, especially his undeniable and irrepressible desire to experience God's transcendence.
The Indispensability of the High Court
Significantly, the Parasha
introduces the High Court as the first and foremost of the state's institutions,
and indeed its laws are its foundation.
A careful reading of the relevant texts implies that not only is the High
Court the repository of unbiased justice and impartial truth, but also the
engine of legislative progress. The
Ramban (13th century,
As the Ramban insightfully remarks,
to stray from the ruling of the High Court is not only disastrous for the
culpable individual, but also deleterious and eventually fatal for the state
itself: "The necessity for this
command (to obediently abide by the rulings of the High Court) is very
great. This is because the Torah
was given to us in written form and it is well known that opinions cannot be in
complete agreement concerning new contingencies that will arise. Many disagreements could very well lead
to the single Torah becoming multiple systems. Therefore, the text presents us with an
unambiguous directive to adhere to the decisions of the High Court that stands
before God at the place that He chooses, concerning everything that they decide
with respect to the Torah's interpretation. It matters not whether their
interpretation constitutes an authentic tradition received by accurate oral
transmission from Moshe who heard it from God, or whether they rule in
accordance with their discernment of the Torah's implication or intent, for God
gives the Torah in conformity with their understanding
" (Commentary of the
Ramban, 13th century
Thus, the purpose of the High Court is to offer decisions concerning new situations that become relevant as human history continually unfolds, and human societies continually evolve. The High Court is charged with the mission of examining these novel realities in light of the received written text and traditions of the Torah and interpreting them against the backdrop of the accumulated and ever-growing corpus of precedents. It subsequently must use its august authority to proclaim a ruling on the matter, arrived at through the consensus of the majority, which is then binding upon the entire Jewish people. Without such a mechanism in place to address new contingencies, the Torah stands in danger of becoming a fossilized text frozen in time, to be eventually unseated by an unwieldy and unruly multiplicity of competing systems that all claim to derive their authority from its words.
The Tragedy of 'Exile'
In a remarkable passage from his
monumental Code, the Rambam (12th century,
"There, the query would be presented. If the High Court had a tradition concerning the matter or had already considered it through the application of the accepted principles of interpretation, then they declared their ruling immediately. If not, then they would deliberate over the matter and consider it carefully until an absolute consensus emerged, or else they would vote and follow the opinion of the majority. They would declare to the petitioners: 'This is the ruling!' and the latter would be dismissed. When the High Court ceased to function, disagreement increased in Israel this one declares an item to be 'Tamei' (ritually unfit) and offers sound reasons for his ruling, and this one declares it to be 'Tahor' (ritually fit) and offers sound reasons for his rulings, this one forbids and this one permits " (Rambam, Laws of 'Mamrim'/Rebels 1:3-4).
In other words, the most important
vehicle for the preservation of unity of practice and purpose in ancient