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PARASHAT SHOFTIM

By Rav David Silverberg

Parashat Shoftim discusses various laws regarding prophecy, including the means by which an alleged prophet receives confirmation of his prophetic status, the punishment for those who violate a prophet’s instructions, and the situation of a false prophet (18:18-22). Moshe records God’s warning that should a person violate a prophet’s words, “Anokhi edrosh mei-imo” – loosely translated, “I will exact retribution from him.” Based on this verse, the Mishna in Masekhet Sanhedrin (89a) establishes that this transgression is punishable not by court execution (mitat beit-din), but rather by the hands of God Himself (mita bi-dei Shamayim).

The Mishna’s terminology in presenting this halakha is noteworthy: “One who disregards a prophet’s words, and a prophet who violates his own words – his death is at the hands of God.” The Mishna finds it necessary to distinguish between ordinary people who violate prophetic instructions, and a prophet who ignores the prophecy he had himself received. Seemingly, both the prophet himself and others commit the precisely same violation by disregarding a given prophecy. Why does the Mishna bother to specifically mention the case of a prophet who violates his own prophecy? Secondly, we should note the different terminology employed in the two clauses. Regarding other people, the Mishna speaks of one who “disregards” (“mevater”) prophecy, whereas in describing the case of a prophet violating his own prophecy, the Mishna uses the more common term, “she-avar al divrei atzmo” – “who violated his own words.” How might we account for this distinction?

Rav Menachem Genack, in his work on Masekhet Sanhedrin entitled Birkat Yitzchak (chapter 49), addresses these questions and suggests several possible answers. One simple answer emerges from Rashi’s comments to this Mishna. Commenting on the phrase, “ha-mevater al divrei navi,” referring to others who disregard prophecy, Rashi explains, “One who casts them aside, [meaning,] that he pays no concern to what the prophet said to him.” Sensitive to the Mishna’s shift in syntax, Rashi interprets mevater as something more than disobedience. As the Minchat Chinukh (516) writes, Rashi refers here to a general attitude of disregard and scorn. Only this response to a prophet’s instruction – as opposed to merely disobeying it – renders one liable to mita bi-dei Shamayim. If so, then we clearly understand why the Mishna differentiates between the prophet himself and others with regard to the prohibition against disobeying prophecy. The prophet himself is liable to punishment even if he simply disobeys the instruction conveyed to him, whereas others are punished only if they respond to the prophet with scorn and disregard.

The Rambam, however, clearly did not accept Rashi’s distinction, and appears to have afforded no significance at all to the Mishna’s shift in terminology. In Hilkhot Yesodei Ha-Torah (9:2), the Rambam codifies the mita bi-dei Shamayim punishment for those who violate prophetic instruction, and employs the term “oveir” in reference to both the prophet himself, as well as to others. This clearly indicates that he saw no halakhic distinction between these two cases, in direct opposition to Rashi. The question, then, returns, why did the Mishna (and, for that matter, the Rambam) single out the case of the prophet who disobeys his own prophecy? Why would this case be any different than a situation of another person who violates the prophet’s words?

Rav Genack therefore suggests a different explanation, claiming that the prophet’s transmission of prophecy he received lends a formal halakhic status to that prophecy. Since prophecy is intended – by definition – to be spoken to the people, rather than confined to the prophet’s mind, its formal halakhic status as a binding prophecy obtains only once the process has been completed, with the prophet’s verbal transmission of the divine message he had beheld. As such, the standard prohibition against disobeying prophecy, and the punishment it incurs, does not apply when a prophet violates his prophecy before transmitting it to others. Since at that point the formal halakhic status of prophecy has yet to take effect, the prohibition cannot apply. The Mishna therefore had to specify that a prophet is nevertheless forbidden – at the threat of mita bi-dei Shamayim – from violating his prophecy even before he conveys it to the people, but this prohibition differs fundamentally from, and is independent of, the standard prohibition against disobeying a prophet.

Tomorrow we will iy”H present Rav Genack’s third suggestion to resolve this question.

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Yesterday, we discussed the prohibition against violating the instruction of a prophet, which the Torah establishes in Parashat Shoftim: “The man who does not heed My words that he [the prophet] speaks in My Name – I will exact retribution from him” (18:19). As we noted, the Mishna (Sanhedrin 89a), in discussing the punishment for this violation, speaks both generally about one who disobeys a prophet, and in particular of a prophet who violates the instructions he had himself received through prophecy. Seemingly, in both cases the precisely same prohibition has been violated, and there thus appears to be no need for the Mishna to specify the situation of the prophet who disobeys his own word.

Rav Menachem Genack, in his Birkat Yitzchak, suggests (in addition to the answers we cited yesterday) that the Mishna’s presentation might stem from a subtle distinction between disobeying prophecy, and disobeying a prophet. Theoretically, one could define this prohibition in one of two ways – as forbidding either the violation of divine instruction conveyed to a prophet, or rejecting the prophet himself. This distinction would manifest itself in practical terms should there arise a situation where somebody has knowledge of a prophecy conveyed to a prophet, but that prophet has yet to transmit the information to the people. According to the first approach, the Torah forbids disobeying prophecy, and therefore one violates this prohibition even though the prophet has not spoken. If we accept the second approach, defining the prohibition as forbidding disobeying the prophet himself, then this prohibition can take effect only after the prophet conveys the prophetic information.

One such example, Rav Genack suggests, might be the instructions conveyed through the Urim Ve-tumim, the oracle-like device on the kohen gadol’s breastplate that provided guidance on matters of national concern. Rashi, in his commentary to Parashat Shoftim (18:14), appears to equate the Urim Ve-tumim process with prophecy. If, indeed, instructions conveyed through the Urim Ve-tumim are halakhically equivalent to prophecy, then we might speculate as to whether the prohibition against disobeying a prophet applies as well to disregarding the instructions of the Urim Ve-tumim. It stands to reason that if we define this prohibition in terms of disobeying a prophet, then it cannot be applied to the prophetic directives of the Urim Ve-tumim, which are not transmitted through a prophet. If, however, the prohibition forbids disobeying prophecy, then it will very likely apply even to prophecy that is not conveyed through a prophet.

With this in mind, Rav Genack suggests an explanation for why the Mishna singled out the case of the prophet who disobeys his own prophecy. If we define the prohibition in terms of disobeying a prophet, it would seemingly not apply to the prophet himself; it is hard to speak of someone disobeying himself. Therefore, if the Torah indeed forbids a prophet from disobeying the prophecy he has received, this prohibition cannot be seen in the same light as the general prohibition against disobeying a prophet. Accordingly, the prohibition forbidding a prophet from disregarding his own prophecy stands separate apart from the prohibition that applies to others, and for good reason, then, the Mishna speaks of these cases separately from one another.

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Parashat Shoftim presents the laws relevant to the Jewish king (17:14-20), including the obligation that he write for himself “mishneh ha-Torah ha-zot” – “this mishneh Torah” (17:18). The Gemara in Masekhet Sanhedrin (22a) interprets this term to mean that the king must possess two Torah scrolls: one that remains in the royal treasury, and another which “he makes like an amulet and hangs around his arm,” such that he takes it with him wherever he goes.

There is considerable discussion in Talmudic literature as to what exactly was written in this second Torah scroll, the one that the king took with him at all times. The most intuitive and – it would appear – common understanding is that it was a complete Torah scroll. The Sifrei, commenting on this verse, writes explicitly that the king’s Torah had to contain the entire Torah. The Sifrei arrives at this conclusion based on the verse’s continuation – “he shall read it his entire life, in order that he learn to fear the Lord his God, to observe all the words of this Torah and these statutes…” Since the purpose of the accompanying Sefer Torah was to ensure that he observes “all the words of this Torah,” it stands to reason that it must contain the entire Torah.

Rashi appears to have assumed this, as well. Commenting on the Gemara’s description of the king’s second Torah scroll, which he carried “like an amulet,” Rashi explains that the writing was very small, as in an amulet. Rav Barukh Yitzchak Yissakhar Rosenthal, in his Birkat Yitzchak, suggests that Rashi most likely sought to resolve the obvious problem raised by the Rashash, as to how the king could carry a complete Torah scroll hanging from his shoulder wherever he went. This practical problem led the Rashash to conclude that the king’s second Torah scroll did not actually contain the entire Torah. However, as Rav Rosenthal notes, Rashi very likely sought to resolve this difficulty by explaining that the king’s Torah was written in very small print, such that it was not too heavy for the king to carry with him. Thus, Rashi presumably worked off the assumption that this scroll contained the entire Torah, compelling him to explain that it was written in small print.

Rav Rosenthal adds that the Gemara itself appears to indicate that the king’s scroll was a standard, complete Sefer Torah. Earlier (21b), the Gemara cites a berayta that infers from a verse that a king must write his own Torah, rather than use somebody else’s scroll. Abayei notes that from the berayta’s formulation, it appears that this restriction applies only to a king, and not to the general obligation requiring every Jew to write a Sefer Torah. Clearly, Abayei’s deduction presumes a degree of parity between the king’s obligation and that of every Jew, suggesting that a king, like every other Jew, must write a complete Sefer Torah. Rav Rosenthal ultimately dismisses this proof, demonstrating that at this point the Gemara had yet to arrive at the obligation for a king to write two Sefer Torah, and assumes that a king must write only a single scroll. This passage thus cannot provide any proof regarding the second Torah scroll, which the king carries with him at all times.

As noted by Rav Rosenthal and by Rav Gershon Arieli, in his Torat Ha-melekh, the Rambam likewise appears to hold this view. In Hilkhot Melakhim (3:1), the Rambam speaks of the two scrolls equally, implying that they were identical. Furthermore, he writes that the king’s personal Torah scroll had to be reviewed based on the original Sefer Torah in the Beit Ha-mikdash, which was obviously a complete scroll, perhaps suggesting that the king’s scroll was likewise complete. Indeed, as Rav Arieli notes, the Rambam comments explicitly in his commentary to the Mishna (Sanhedrin, chapter 2) that the king must write “two complete Torah scrolls.”

Tomorrow we will iy”H look at sources that indicate to the contrary, that the king’s second scroll contained only part of the Torah.

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Yesterday, we discussed the obligation introduced in Parashat Shoftim (17:18) requiring that a Jewish king write “mishneh ha-Torah ha-zot,” which the Gemara (Sanhedrin 22a) interprets as referring to two Torah scrolls. The first would be stored in the royal treasury, while the second was carried by the king and accompanied him wherever he went. In yesterday’s discussion, we presented the sources suggesting that the scroll carried by the king was a regular Sefer Torah, namely, that it contained the entire Torah. Today we will present four other positions on the matter:

1) The Pesikta Zutreta to Parashat Shoftim cites two views, the first claiming that the scroll contained the entire Torah, the second arguing that it contained only Sefer Devarim. It is unclear why the king would be required to carry with him and regularly study specifically Sefer Devarim, more so than other sections of the Torah. The Pesikta mentions in this context that only Sefer Devarim was read during the king’s public Torah reading at the nationwide hakhel ceremony (see Devarim 31:11), but it is hard to know why this should dictate that the king’s personal Torah contain only this sefer.

2) Targum Yonatan Ben Uziel translates the term mishneh ha-Torah as “parasha orayta ha-da” – “this section of Torah.” This translation would suggest that the king writes only this immediate section of the Torah, dealing with the laws of the monarchy. Thus, this scroll contained just the seven or so verses that comprise this section of Parashat Shoftim.

3) The Da’at Zekeinim Mi-Ba’alei Ha-Tosefot (17:20) cites a view that the king’s scroll (presumably referring to the second scroll, which he carried with him) contained only the Ten Commandments. Chazal nevertheless refer to it as a “Sefer Torah” because the section of the Ten Commandments contains 613 letters, equivalent to the number of commandments in the Torah.

4) The Rashash, in his commentary to Masekhet Sanhedrin (22a), contends (albeit with some hesitation, introducing his remarks with the expression “lulei de-mistefina”) that the scroll contained only a brief summary of the commandments. The Rashash arrived at this position based on a number of factors. Firstly, he was troubled by the Gemara’s description of the king’s Torah scroll hanging around his arm. The Gemara in Berakhot (24a) explicitly states that one may not hang a Sefer Torah (or tefillin) such that it is suspended in air, as this constitutes an infringement on its sanctity. Necessarily, then, if the king’s scroll indeed hung from his arm or shoulder, then it could not have had the formal halakhic status of a Sefer Torah, and was rather a scroll containing a summary of the Torah’s essential content. In addition, Targum Onkelos translates the phrase mishneh Torah as “patshegen orayta” – the “patshegen” of the Torah. The Rashash claims that this Aramaic word (which appears several times in Megilat Ester – 3:14, 4:8, et al) means the crux or essential component of a given text. Accordingly, it stands to reason that Onkelos refers to a brief overview or summary of the Torah. Finally, the Rashash contends that it would be impossible for a king to carry with him a complete Sefer Torah at all times. If the Torah demands that this scroll accompany the king constantly, we must assume, the Rashash claims, that it was something small and light.

(Recall from yesterday’s discussion that Rashi appears to have been sensitive to this point, and therefore explained that this Sefer Torah was written in very small print.)

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Towards the end of Parashat Shoftim, we read of the prohibition known as bal tashchit – the purposeless destruction of goods (20:19-20). Although the immediate context is cutting fruit trees to make battery rams while besieging a city, this prohibition covers any type of wasteful destruction.

The Shulchan Arukh Ha-Rav (written by the first Lubavitcher Rebbe), in his discussion of bal tashchit (Hilkhot Shemirat Ha-nefesh U-bal Tashchit, 15), comments that this prohibition applies regardless of the given property’s ownership. He writes that if the Torah forbade destroying trees belonging to an enemy nation, then it most certainly applies to one’s own property, as well as to that of a fellow Jew or to an item of hefker – meaning, that is ownerless.

As noted by Rav Tzvi Pesach Frank (as recorded in Har Tzvi al Ha-Torah), a different source seems – at first glance – to indicate that hefker items are not included in the prohibition of bal tashchit. The Mishna in Masekhet Midot (1:2) tells that an appointed official would circle about the area of the Temple Mount to check if any of the Levi’im on watch duty was asleep. Should he come upon a sleeping guard, he would whip the negligent watchman and even had the right to destroy his clothing. The Rosh, in his commentary to Masekhet Tamid (28a), provides a somewhat ambiguous explanation for why this does not violate the prohibition of bal tashchit, by simply invoking the famous halakhic principle of hefker beit din hefker. This principle, which appears in several contexts in the Talmud, empowers rabbinic authority bodies to confiscate property. How does this rule help override the prohibition of bal tashichit, thus permitting the destruction of usable clothing? Seemingly, the Rosh works off the assumption that bal tashchit does not apply to hefker property. Therefore, in an effort to discourage negligence during watch duty, the Sages declared a sleeping guard’s clothing hefker, such that its destruction would be permissible.

It would seem, therefore, that, at least according to the Rosh, there is no prohibition against wasteful destruction of ownerless goods.

However, Rav Frank suggests an alternate reading of the Rosh’s comments. In Masekhet Gittin (36b), the Gemara cites two Scriptural sources for the concept of hefker beit din hefker. The first is a verse from Sefer Ezra (10:8), which tells that Ezra ordered an assembly of all the Jews that had returned to Eretz Yisrael, threatening to destroy the property of those who do not join. The second source, a verse from Sefer Yehoshua (19:51), draws a subtle association between the parent-child transfer of property, and distribution of land by rabbinic authorities, indicating that rabbinical courts have the power of property distribution similar to that of parents. Rav Frank suggests that whereas the second source demonstrates Chazal’s legal power of confiscation, the first appears to extend even further, effectively licensing rabbinic authorities to destroy property for purposes of enforcing their edicts. (We should note that this interpretation of the verse in Sefer Ezra depends on the precise translation of the word yacharam, which Rav Frank assumes denotes destruction; this is indeed the translation given by Metzudat Tziyon.)

If so, then it is perhaps to this halakha that the Rosh refers when he mentions hefker beit-din hefker. This principle, as Rav Frank demonstrated from the two sources cited in Gittin, entitles the court to both confiscate and destroy property for purposes of enforcing its legislation and decisions. The concept of hefker beit-din hefker thus adequately explains how the official on the Temple Mount was allowed to destroy the clothing of a negligent Levite guard.

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As we discussed earlier this week, Parashat Shoftim discusses laws relevant to prophecy, such as the obligation to obey prophetic instruction and the prohibition against rendering false prophecy (18:15-22). In this section, the Torah also addresses a very basic question that arises concerning the institution of prophecy: “And should you wonder, ‘How shall we determine that which the Lord has not spoken?’” (18:21). If we are bidden to obey the words of a true prophet, we must have some method of determining when a prophet speaks truly and when he falsely alleges to convey the divine word. The Torah therefore establishes (verse 22) that should a prophet make a prediction that goes unfulfilled, we may dismiss him as a charlatan.

The Rambam, in Hilkhot Yesodei Ha-Torah (10:4), imposes a significant limitation on this principle, distinguishing between “good” and “bad” prophecies. When the Torah instructs disregarding the prophecy of an alleged prophet whose predictions fail to materialize, it refers only to favorable predictions foretelling blessing, success, salvation and the like. By contrast, the outcome of prophecies predicting doom or suffering does not necessarily reflect the alleged prophet’s status. For these predictions are intended specifically to encourage the given individual or group of individuals to repent and thereby escape the predicted catastrophe. Therefore, the failure of such a prophecy to come true serves no proof to the fallacy of the prediction. Although the Rambam draws proof to this theory from a passage in Masekhet Berakhot (7a), it has not been universally accepted. Rav Chasdai Crescas (Or Hashem, 2:4) and Abarbanel (commentary to Parashat Shoftim) disagree, and claim that even favorable predictions are subject to change in accordance with the individual or nation’s conduct.

Rav Yitzchak Elchanan Spektor of Kovna, in his introduction to the second volume of his Ein Yitzchak, suggests the possibility of hinging this issue on a debate between two Tanna’im. The final Mishna in Masekhet Nazir records a debate between Rabbi Nehorai and Rabbi Yossi as to whether the prophet Shemuel was a nazir. Chana, Shemuel’s mother, had prayed for a child and promised that should her wish be granted, “mora lo ya’aleh al rosho” – literally, “a razor shall not go upon his head” (Shemuel I 1:11), indicating that Shemuel was consecrated as a nazir even before conception. Rabbi Yossi, however, interprets mora to mean “fear,” referring here to the fear of men. According to his interpretation, Chana here prays that her son should experience fear of God alone, and not of any human being.

Rabbi Nehorai dismisses this interpretation on the basis of a verse later in Sefer Shemuel I (16:2), which tells that Shemuel indeed feared the sword of King Shaul, clearly indicating that Shemuel did not live a life free of mora basar va-dam (fear of other human beings). Since the kohen Eli prophetically guaranteed Chana of her prayer’s acceptance (see Shemuel I 1:17), the content of that prayer must accurately correspond to future developments. Hence, had Chana indeed prayed that her son would experience no fear of other men, Shemuel would not have expressed his concern that King Shaul would kill him. Rabbi Nehorai therefore rejects Rabbi Yossi’s interpretation.

Rav Yitzchak Elchanan suggests that Rabbi Yossi and Rabbi Nehorai argue the point of whether or not a favorable prophecy can be reversed. Rabbi Nehorai clearly assumes the Rambam’s position, that a prophecy of this nature will invariably be fulfilled. Rabbi Yossi, perhaps, argued that even such a prophecy is subject to change, and it is therefore possible that Chana was prophetically assured that her son would never experience mora basar va-dam, but this prophecy was later – for whatever reason – revoked.

If this understanding of the debate is correct, then Rabbi Nehorai represents the view advocated by the Rambam, that favorable predictions must unfold as foreseen by the prophet, whereas Rabbi Yossi champions the position later espoused by Rav Chasdai Crescas and Abarbanel, that even good prophecies can be revoked. Indeed, as Rav Yitzchak Elchanan observed, the Rambam, in Hilkhot Nezirut (3:16), writes explicitly that the prophet Shemuel was a nazir, in accordance with Rabbi Nehorai’s position.

Rav Yitzchak Elchanan concedes that one may understand the debate differently. As mentioned earlier, Rabbi Nehorai’s logic presumes that the kohen Eli prophetically foresaw the fulfillment of Chana’s prayer, and in this vein Rabbi Nehorai understood Eli’s remark to Chana, “the God of Israel shall grant the request you made of him” (Shemuel I 1:17). (Rashi, in his commentary to Sefer Shemuel, follows this interpretation.) However, the Gemara in Masekhet Berakhot (31b) very clearly reads this verse as a prayer, a blessing Eli wishes upon Chana, rather than a prophecy. Conceivably, Rabbi Yossi disagrees with Rabbi Nehorai because he follows this position, that Eli never actually predicted the fulfillment of Chana’s prayer. If so, then both Rabbi Nehorai and Rabbi Yossi follow the view espoused by the Rambam, that a favorable prophecy can never be retracted.

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Among the topics addressed in Parashat Shoftim, as we mentioned earlier this week, is the prohibition known as bal tashchit – forbidding purposeless destruction. The Torah writes, “If you besiege a city for an extended period to wage war against it, to capture it, do not destroy its tree, wielding an ax upon it, for you eat from it – you shall [therefore] not cut it down” (20:19). In the next verse, the Torah permits cutting trees that do not bear fruit, as this does not involve the destruction of edible substances.

The Rambam, in Hilkhot Melakhim (6:8), writes that one who destroys a fruit-bearing tree “derekh hashchata” – for purely destructive purposes – is liable to malkot (flogging). Later (6:10), the Rambam extends this prohibition to other forms of purposeless destruction, mentioning the examples of breaking utensils, tearing garments, destroying buildings, stuffing water fountains, and throwing away edible food. The Rambam writes explicitly that these forms of destructive behavior also violate the prohibition of bal tashchit. Nevertheless, the Rambam writes that in such cases the violator is not punished with malkot; bal tashichit warrants malkot only in the case of cutting trees, but not in other situations of forbidden destructive activity. This is also the position of the Sefer Ha-chinukh (529).

In explaining the Rambam’s ruling, Rav Avraham Gurvitz, in his Or Avraham, refers us to the comments of the Magid Mishneh in Hilkhot Isurei Bi’a (1:22). The context of the Magid Mishneh’s discussion is the prohibition mentioned later in Sefer Devarim (24:4) of machazir gerushato, forbidding one from remarrying his ex-wife if she had been married in the interim. The Gemara (Yevamot 11) extends this prohibition to include a situation of an infidel wife. This verse forbids not only remarrying one’s wife after she had been married to another, but also engaging in relations with one’s wife after she had been involved in an adulterous affair. Although the Gemara indicates that both situations are addressed by the verse, the Rambam nevertheless rules that one is liable to malkot only in the situation described explicitly in the Torah, where one remarries his wife who had married another in the interim. In the case to which the Gemara extends this prohibition, of an infidel wife, the couple is not liable to malkot. The Magid Mishneh explains that corporal punishment can be administered only for violations of prohibitions formulated explicitly in the Torah. Prohibitions that Chazal deduce through the process of the midot she-ha-Torah nidreshet ba-hen (rules of halakhic exegesis) are indeed binding on the level of Torah law, but do not render violators liable to corporal punishment.

This rule applies as well in the case of bal tashchit. Since the Torah mentions explicitly only the case of destroying a fruit-bearing tree, other situations of destructive conduct, though certainly included under the Torah prohibition of bal tashchit, are not punishable with malkot.

Interestingly, however, the Rambam takes a different stance in his Sefer Ha-mitzvot (lo ta’aseh 57), where he writes explicitly that one who purposely destroys a utensil or garment is punished with malkot. Apparently, the Rambam changed his position at some point in between his publication of Sefer Ha-mitzvot and Mishneh Torah. What might be the logic in prescribing malkot for instances of bal tashchit other than destroying a tree? Does this perhaps call into question the general rule formulated by the Magid Mishneh? Rav Gurvitz suggests that the Rambam, when writing the Sefer Ha-mitzvot, perhaps felt that conclusions reached through logical deduction from the written text is equivalent to explicit reference. The Magid Mishneh’s rule might, in principle, apply only to conclusions reached based on the midot she-ha-Torah nidreshet ba-hen, but not to those reached on the basis of simple logic. Once the Torah forbade destroying trees during a siege, it in essence forbade any type of purposeless, wasteful destruction, the situation of fruit-trees serving as but one example. As this extension emerges from straightforward, logical deduction, the Rambam in Sefer Ha-mitzvot felt that malkot are warranted for all violations of bal tashchit.

In Mishneh Torah, of course, the Rambam retracted this position, and held that any prohibition that the Torah does not spell out explicitly does not warrant malkot.