The High Court

  • Rav Michael Hattin






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 Israel in their own land.  "You shall appoint judges and officers in all of your gates that God your Lord gives to your tribes, and they shall judge the people with just rulings.  Do not distort justice, do not show favor, do not take bribes…Justice and only justice shall you pursue, in order that you may live and possess the land that God your Lord gives you" (Devarim 16:18-20).  These judicial guidelines mandating justice and truth are followed by a brief set of prohibitions concerning idolatrous groves and shrines, and blemished sacrifices.  A lengthier section then follows concerning the trial and sentencing of those who choose to worship idols. 


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 Israel.  The people shall hear and be afraid, and will not rebel again" (Devarim 17:8-13). 



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 Israel are to follow the guidance of the 'Navi' or Prophet, who will communicate God's will to them, after the manner of Moshe himself.  The false prophet, however, who speaks words that were not received from God, or who speaks in the name of idolatry, is to be put to death.  So concludes the first half of the Parasha.


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 Temple and carefully fulfilling the exacting rituals of the Service, but are also expected to serve as Judges and Teachers of the law.  The Prophet may evoke a detached religious figurehead, yet is consistently presented throughout Tanakh as also playing a crucial role in influencing political affairs of state. 


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, Spain) explains that the Torah is quite deliberate in its rather emphatic directive to obediently abide by the decisions of the High Court: "You shall follow the ruling that they shall declare from that place that God will choose, and you shall be careful to fulfill that which 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 Israel" (Devarim 17:10-13). 


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 Spain, Devarim 17:11).


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, Egypt) comments on the incomparable efficacy of the High Court: "There can never be disagreements concerning received traditions, and therefore any matter that engenders disagreement cannot be a tradition received from Moshe at Sinai.  Matters that are derived through the exercise of logical principles must be ruled upon by the High Court.  If their agreement is unanimous, so be it.  If they are in disagreement, then the ruling follows the majority view…As long as the High Court functioned, there was no disagreement or discord in Israel.  Whenever an uncertainty would arise concerning any matter, the query would be addressed to the local court.  If they could offer a ruling, they did so.  If not, then the questioner and the local court or its agents would go up to Jerusalem and approach the court that convened at the entrance to the Temple Mount.  If they could offer a ruling, they did so.  If not, then all would converge on the court that met at the entrance of the Temple Forecourt.  If they could offer a ruling, they did so.  If not, then all would converge on the Chamber of Hewn Stone, where the High Court held its sessions." 


"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 Israel was not the King, the Kohanim, or even the Prophet, but rather the High Court.  It alone had the power to bring together differences of opinion and constructively mold them into an acceptable consensus.  The tragedy of the Destruction was not simply the fact that it erased the Temple as the physical nucleus of the Jewish State, or that it brought an end to Jewish sovereignty in Israel, or that it accelerated the devastating process of dispersion.  Those ruinous events were indeed significant causes to mourn.  The singular calamity of the Destruction, however, was the loss of a central judicial and legislative authority that had the mandate of the people of Israel to offer binding decisions.  It is no wonder that in the Messianic visions of redemption preserved in the words of the Prophets, the restoration of the State is bound up with reestablishment of the High Court in all of its splendor: "At the end of days, the mountain of God's House shall be the highest of mountains and raised up above the hills, and all of the nations shall stream towards it.  Many peoples shall go there, saying: 'Let us go up to God's mountain to the House of the Lord of Yaakov, so that He will teach us His ways and we shall  walk in His paths, for teaching shall go forth out of Zion, and the word of God from Jerusalem…"


Shabbat Shalom