Commentaire sur Le Deutéronome 13:15

ודרשת וחקרת ושאלת היטב THEN SHALT THOU INQUIRE, AND MAKE SEARCH, AND ASK DILIGENTLY — From here — from the variety of expressions denoting inquiry in this verse — they (the Rabbis) derived the law of investigating capital cases by means of seven investigations” (referring to date, time and place). in the following manner: here (in our verse) there occur three expressions relating to inquiry, viz., ודרשת, וחקרת and היטב — the expression ושאלת does not come into account, because from it they derived בדיקות, the examination referring to accompanying circumstances, — and in another passage (Deuteronomy 19:18) it states, “and the judges shall enquire diligently (ודרשו השופטים היטב)”, and still in another passage (Deuteronomy 17:40) it states, “and thou shalt inquire diligently (ודרשת היטב)" — thus altogether seven expressions. — And although they are used in connection with different cases they learned by way of analogy (ג"ש) of the term היטב used here and in the passages quoted that it is intended to apply what is stated in one case to the others also (Sanhedrin 40a; cf. Sifrei Devarim 93:6).

AND THOU SHALT INQUIRE, AND MAKE SEARCH, AND ASK DILIGENTLY. The nature of “inquiry” and “making search” [with which the judges are to test witnesses] are explained in the words of our Rabbis.¹⁷⁶Sanhedrin 40a. Now Scripture mentions these investigations [here] in the case of an apostate city,¹⁷⁷Literally: “a city [whose inhabitants were] led astray” after the idols. and also in the case of an idol-worshipper,¹⁷⁸Further, 17:4. but it does not mention them in the case of the false prophet or the inciter, because the prophet publicizes himself with his signs and wonders, and in the case of the inciter Scripture addresses itself to the incited party: but thou shalt surely kill him,¹⁷⁹Above, Verse 10. and he [the incited party, is the one] who knows and bears witness, just as is stated, neither shalt thou spare, neither shalt thou conceal him.¹⁸⁰Ibid., Verse 9. Thus, Scripture need not enjoin diligent inquiry and testing of witnesses because the facts are well known to those charged with administering the penalty; the public in the case of a false prophet, and the victim in the case of the inciter. But in the case of an apostate city¹⁷⁷Literally: “a city [whose inhabitants were] led astray” after the idols. and of an idol worshipper, which are deeds that reach us by means of report, Scripture mentions, with reference to them, inquiry and investigation [of the witnesses]. It was unnecessary to state this about the others liable to death because it is known by means of a kal vachomer.¹⁸¹A form of reasoning from “a minor” to “a major” matter. See Vol. II, p. 133, Note 208. Here it would apply as follows: If in those sins that bear less severe punishment [beheading in the case of an apostate city, etc.] the Torah requires “inquiry” and “investigation” of the witnesses, they are surely required in cases where the punishment is more severe, such as stoning. See Sanhedrin 40b. He states in the case of plotting witnesses, and the judges shall inquire diligently,¹⁸²Further, 19:18. because it cannot be determined which of the two conflicting groups of witnesses is telling the truth except after considerable investigation. Concerning the law, all cases are deduced from each other by means of a similarity of Scriptural expressions. And from all the combined expressions we derive the principle that we are to test the witnesses with seven inquiries,¹⁸³“In which Sabbatical seven-year period? In what year? In what month? On what date of the month? On what day [of the week]? In what hour? In what place?” (Sanhedrin 40a). Time and place are thus of the essence of the testimony. See the following note. and examinations.¹⁸⁴The “investigations” related to matters incidental to the crime, such as how the victim was dressed. In the case of “the seven inquiries” (see preceding note) if one of the witnesses said “I do not know,” their testimony becomes invalid. But in the examinations, even if both did not know, their evidence was still valid. However, if they contradicted each other in examinations, their evidence was invalid. The number of investigatory questions is unlimited. In fact, “the more a judge examines the evidence, the more he is deserving of praise” (ibid.).

ודרשת וחקרת, “You shall seek information and investigate.” Nachmanides, commenting on this phrase-ology, writes that there is a reason why the Torah urges painstaking investigation in connection with the phenomenon of the עיר הנדחת, the city of which the majority of the inhabitants have adopted idolatry, and also in the case of an individual who is found committing idolatry, whereas the same is not required for the false prophet or the seducer. The self-professed false prophet has already advertised his sin to all the people whom he addressed with his “divinely inspired” message. No court is needed to establish these facts. In the case of the seducer, מסית, the Torah had already called upon his victim or prospective cohort to come forward and to testify against the seducer. It has warned the victim not to be moved by pity. What more could the court do if the people addressed by the Torah fail to come forward? A seducer, who always acts under the cloak of secrecy, cannot be brought to trial except through the cooperation of the victim with the Torah. Knowledge about the first two situations is usually based on rumours first, not on eye-witnesses. The Torah therefore urges not to accept such rumours as fact, but to investigate the accusations thoroughly and without prejudice. We have a similar instruction by the Torah concerning conflicting testimony about a crime or sin by separate sets of witnesses. There too, the Torah (Deut. 19,18) writes: ודרשו השופטים היטב, “the judges must conduct careful examinations etc.,” seeing it is difficult to know which set of witnesses speaks the truth, both having a clean record up to that time.