Shoftim: These Days

As indicated by its name, much of this week’s Parsha deals with the Dinim and Halachos of Bais Din. There are specific Halachos, such as those of Eidus, that are learned from these Pessukim, as well as some more general notions regarding process of Bais Din and the mindset necessary to be a judge. While many of us will never be Dayanim or Shoftim, and hope never to require their services either, there is a set of Pessukim that speaks of the relationship of the general public and the Shoftim that bears some exploration.

The Pessukim discuss the need to address difficult questions and cases to a higher authority, and begin with the words: “Ki Yipalei Mimcha Davar Bein Dam Bein Dam L’Dam, Bein Din L’Din, Bein Negah L’Negah, Divrei Rivos B’Sharecha.”

Rashi explains means that the words “Ki Yipalei Mimcha” refer to something separate and hidden—there is a case or question that we cannot resolve on our own. The remainder of the Passuk is a list various types of issues that may be difficult to understand, each of which represents a section of Halacha: capital law, civil law, laws of Tumah and Tahara, or any case in which there is a disagreement among local authorities. In all such instances the Torah instructs us to address the case to a higher authority—the Sanhedrin Hagadol that sits in the Lishkas Hagaziz on Har Habayis.

The next Passuk describes how the case will ultimately be decided: “U’Basa El HaKohanim HaLeviim V’El HaShofet Asher Yihiyeh Bayamim Hahem, V’Darashta V’Higidu Lecha Es Devar Hamishpat.” We are to present the quandary to the Kohanim or the Shoftim that are found at the Makom HaMikdash, and they will instruct us how to proceed. To all eyes this seems like a very simple process: if the local courts or Poskim are unable to resolve a case or issue a Psak, the case should be brought to a higher authority who will be able to do so. The wording of the Passuk, however, does require some explanation.

The Gemarah in Rosh Hashana, which is paraphrased by Rashi here, points out that are four words in this Passuk that are very clearly extra: “Asher Yihiyeh Bayamim HaHem”, which literally means “that is there in those days.” The Torah seems to be telling us that the litigants should address their question to the Shofet who is alive at the time, leading the Gemarah to ask a very pointed question: “V’Chi Saleh Al Datecha Sheadam Holech Etzel Dayan Shelo Haya B’Yamav? Would we assume that a person should go to a Dayan that was not alive in his days?” The Gemarah is pointing out a very simple issue with the wording of the Passuk: why does the Torah have to tell us that one should go to a Shofet that is alive at the time, what other choice does he have?

The Gemarah answers this question by quoting a Passuk in Koheles: “Al Tomar Ma Haya SheHayamim Hareshonim Hayu Tovim M’Elah. Do not say ‘how was it that the previous days were better than these.’” When a person is required to ask a Sheilah to a Rav, or is party to a Din Torah, there is sometimes an instinct to compare the one answering the question to those of a previous generation, who may have been greater. A person will say: “How can so-and-so answer this question? Is he as great as those of the previous Doros?” This impulse is sometimes a means to avoid asking the question and sometimes a way to refute an unsatisfactory answer, but in all cases is meant to diminish the stature of the Rav in question.

On the most simple level the Gemarah is telling us that the Torah is anticipating this attitude: we must go to the Shofet who is alive at the time, “HaShofet Asher Yihiyeh Bayamim Hahem”, not comparing him to those who have come before him. When faced with a matter that requires Halachic advice, we are not to think about who could have answered this question in years gone by, but only who can do so today.

While this Gemarah does explain the seemingly extra words in the Passuk, we must also understand why the Torah chooses to tell us this at all.

The Pessukim that follow this one speak about how to respond when the “Shofet Asher Yihiyeh Bayamim Hahem” issues his decision, using a number of unequivocal phrases: “V’Asisa Al Pi Hadavar Asher Yarucha” “V’Shamarta Laasos K’Chol Asher Yarucha”, and “Lo Sasur Min Hadavar Asher Yagidu LEcha Yamin U’Smol.” We are to follow his directive, without omission, and without straying even an inch from the path he sets us upon. Clearly the Torah means to stress how important it is that we follow the words of the Chachamim without exception.

This being the case, why would the Torah add four words ““Asher Yihiyeh Bayamim Hahem” just to dispel a seemingly irrelevant thought? There is a clear process set out in the Torah: if there is a question that requires an answer, one addresses it to the proper authority, and then follows exactly the Psak that he issues. What’s the difference if one thinks that there were Gedolim in previous Doros that were greater—how does this play a role in the process? Of course we understand that one may have such thoughts, it’s almost a natural tendency, but there are many things that people may think or feel which run contrary to the Derech HaTorah—why in this case are there words added to the Passuk for the express purpose of dispelling this notion?

Perhaps we can answer this question by first examining the first Passuk in this section.

As we mentioned, the Torah lists a number of different types of cases or questions that may require the input of the “Shofet Asher Yihiyeh Bayamim Hahem”. One may wonder, however, why they are all required to be listed. Why couldn’t the Torah make a general statement, that any issue that cannot be resolved by the local Rav or Bais Din should be addressed to the Sanhedrin or the Kohanim in the Bais Hamikdash? Why provide a lengthy list of such cases?

The Bnei Yissaschar, in Agra D’Kallah, explains that in truth any member of Klal Yisroel should be intimately familiar with all aspects of Torah and Halacha, such that he would never face a situation of “Ki Yipalei Mimcha Davar”, because nothing would be hidden from him. The only reason a person or have a specific are of Torah hidden from him, is because his Avieros have blinded him, so to speak.

In general, the Aveiros that would affect a person to this extent can be attributed to three central Middos Raos: Kinnah, Taiva and Kavod, which as Chazal tell us, are “Motzien Es HaAdam Min HaOlam.” This, explains the Bnei Yissaschar, is indicated by the types of Halachos the Torah speaks about. “Bein Dam L’Dam” refers to Aveiros that are tied to the physical and are caused by Taiva; “Bein Din L’Din” refers to financial disagreements between individuals, which are caused by Kinnah; “Bein Negah L’Negah” refers to Tumah and Tahara, which are related to Kavod (Negaim specifically, for example, stem from a lack of Kavod for others).

The upshot of the Bnei Yisaschar’s approach to the Passuk is that the fact that there is a problem that a person can resolve is tied to his own Aveiros, his own Chisronos. This is also indicated by two other words in the Passuk: “Mimcha” and “B’Sharecha”. Both these terms assign possession, so to speak, to the lack of clarity—telling us that if there is something that is misunderstood, it is related to our own shortcomings. If we must resort to approaching the “Shofet Asher Yihiyeh Bayamim Hahem” it is due only to our failings.

With this in mind, perhaps we can understand the Passuk, and the Gemarah in Rosh Hashana, slightly differently.

If a person is in tune with his own stature, and is aware that his inability to resolve an issue is tired to his own deficiencies, he may become despondent. In such a situation, indeed we see quite often, a person then assumes that he is less successful than his parents or grandparents. Keenly aware of the precept of “Niskatnu HaDoros”, we tend to assume that, in the past, the average person was better or more accomplished in his Ruchnias.

It is precisely this mindset that Torah addresses, telling us that when we are in this situation we have someplace to turn: “HaShofet Asher Yihiyeh Bayamim Hahem.” Rather than focusing on what we are missing, we must focus our energies on seeking out those that can help us improve. As the Gemarah points out, we should fixate on our stature relative to those who lived before us, saying “Ma Haya SheHayamim Hareshonim Hayu Tovim M’Elah.” Rather we should take advantage of those in our generation that can help us reach greater heighter, remembering that they were put here by Hashem for just that reason.

What better message can we find in these first days of Chodesh Elul, a time when we being to consider our accomplishments, and yes our failings, in the past year. As we do so, we must not fixate on our shortcomings, bemoaning the sorry state of our collective spiritual existence. Rather than thinking that our generation is not “holding” on the same level as prior Doros, we should realize that we are given the tools to overcome our challenges. We can best learn how to use these tools in consultation with our own Morei Derech, the “HaShofet Asher Yihiyeh Bayamim Hahem.” If we do so, we can be successful in our quest, achieving the ideal of “hh h `` 11233.”