Halakhah su Deuteronomio 17:78

You should know that it is not [truly] appropriate to bring up this topic to explain it. For since the words of the Talmud (Makkot 23b) are, "There were 613 commandments stated to Moshe at Sinai," how can we say about something rabbinic, that it is included in the count. However we have been prompted to it because many erred and counted the Chanukah light and the reading of the Megillah (Scroll of Esther) among the positive commandments. And likewise the hundred blessings each day; comforting the mourners; visiting the sick; burying the dead, clothing the naked; calculating the seasons; and the eighteen days in which we complete [the recitation of] Hallel. You can only stare at someone who hears [the Talmud's] statement, "stated to Moshe at Sinai," and yet counts the recitation of Hallel in which David, peace be upon him, praised God, may He be blessed - that Moshe was commanded about it; or the Chanukah light which the Sages established during the Second Temple; or the reading of the Megillah. I cannot see anyone imagine - or it even coming to his mind - that it was nevertheless stated to Moshe at Sinai that he should command us that when, at the end of our monarchy, such and such happens to us with the Greeks, we will be obligated regarding the Chanukah light. And it appears to me that what led them to this is that we make the blessing [on these commandments], "who has sanctified us with His commandments and commanded us"; and the Talmud's question (Shabbat 23a) - "And where we commanded?" And they said, "From 'you shall not veer'" (Deuteronomy 17:11). But if they counted them from this, they should count everything rabbinic: For everything that the Sages commanded us to do and everything they prohibited to us [would then have] already commanded by Moshe, peace be upon him, at Sinai when he commanded us to do so. And that is his saying (Deuteronomy 17:11), "According to the law that they instruct you, etc." And he prohibited us from violating anything that [the rabbis] ordained or decreed, by saying, "you shall not veer." But if one counts everything rabbinic within the 613 commandments because it all fits into His, may He be blessed, saying "you shall not veer" - why would he count these in particular and not count others besides them? And just like they counted the Chanukah light and the reading of the Megillah, they should also have counted the washing of the hands and the commandment of eruv. For [we also] recite the blessing, "who has sanctified us with His commandments and commanded us," [on these] - just like we recite the blessings on the reading of the Megillah and the Chanukah light. Yet it is all rabbinic! And in explantion, [the Sages] said (Chullin 106a), "[Washing hands] is a commandment." And they said, "What is the commandment? Abbaye said, 'It is a commandment to listen to the words of the sages.'" This is like what they said about the reading of the Megillah and the Chanukah light, "And where were we commanded? From 'you shall not veer.'" And it is already clear that anything that the Sages and the prophets that arose after our teacher, Moshe ordained is also rabbinic. And in explanation, they said (Eruvin 21b), "At the time that Shlomo ordained [the ordinances of] eruv and of washing hands, a heavenly voice emerged and said (Proverbs 27:11), 'My son, be wise and make My heart glad.'" And they explained in other places that eruv is called rabbinic and washing hands is from the words of the Scribes. Behold that it is clear that everything that they decreed after Moshe is rabbinic. Indeed I am explaining all of this to you so that you not think that since the reading of the Megillah is an ordinance of the prophets, it is considered to be from the Torah. As eruv is rabbinic even though it was ordained by Shlomo and his court. And this was missed by someone besides us - so that they counted clothing the naked, because it is found in Isaiah 58:7, "when you see the naked, you should clothe him." And he did not know that it is included in His, may He be blessed, saying (Deuteronomy 15:8), "enough for his lack that he is lacking." For the content of this command is without a doubt that we feed the hungry, cover the naked, give bedding to one without bedding, give clothing to one without clothing, marry off a single man who does not have the wherewithal to get married and to give a horse to ride upon to one who is habituated to it [but can no longer afford it], as is made famous in the Talmud (Ketubot 67b). For this is all included in His saying, "he is lacking." And the words of the Talmud for them were attached 'to a stammering jargon and an alien tongue.' For otherwise, they would not have counted the reading of the Megillah and that which is similar to it with the commandments that were stated to Moshe on Mount Sinai. And it is stated in the Gemara in Shevuot (Shevuot 39a:10), "And I have only the commandments that were commanded at Mount Sinai. From where do I have commandments that were to be initiated in the future, such as the reading of the Megillah? The verse (Esther 9:27) states, 'they fulfilled and accepted' - they fulfilled what they [already] accepted." And that is that they would believe all of the commandments that the prophets and sages ordained afterwards. But it is a wonder: Why did they count positive rabbinic commandments, as we mentioned, and not also mention negative rabbinic commandments. And just like they counted reading the Megillah, the Chanukah light, the one hundred blessings each day and Hallel among the positive commandments, they should have also counted each and every rabbinic secondary sexual prohibition as a negative Torah commandment! It is as [the Sages] explained it and said (Yevamot 20a), "The secondary sexual prohibitions are from the words of the Scribes." And it has already been explained in the Talmud about the statement of the Mishnah, "the prohibition of a commandment" - referring to secondary sexual prohibitions - saying, "What is the commandment? To listen to the words of the sages." And it should have been lookwise appropriate for them to include the sister of the levirate wife, which is from the words of the Scribes. More generally, if we were to count every positive rabbinic law and every negative rabbinic law, it would add up to many thousands. And that is something clear. But the principle is that anything rabbinic is not counted in the category of the 613 commandments. For this category is completely [comprised of] that which is written in the Torah, such that there is nothing rabbinic in it - as we are explaining. However their counting some things that are rabbinic and leaving out others - according to their choice - is an unacceptable notion, no matter what they say! Behold we have explained this principle and its demonstrations such that there should be no doubt about it at all to anyone.

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The Torah identifies two institutions of authority. First, the Torah speaks of the beit din, specifically the Sanhedrin, whose Torah leadership we must follow. In this regard, the Torah exhorts us, "Based on the rulings they rule for you, and [based] on the justice they tell you you shall act" (Devarim 17:11). The Torah subsequently speaks of the leadership of a king. The Torah forbids rebellion against either of these institutions of authority. In fact, both a rebel against Torah authorities (zaken mamreih) and a rebel against political authorities (mored bemalchut) are punished by death, because such people threaten the stability and viability of society. The Ramban (Shemot 22:27) and Sefer Hachinuch (Mitzvah 71), in explaining the prohibition of cursing a leader, write that the Torah forbids cursing any national leader, be he from the political authority or from the Torah authority.

We do not appoint a woman as king, as the Torah states (Devarim 17:15), "Appoint a king" - but not a queen. Similarly, a woman may not be appointed to any leadership position among the Jewish people.

The major halakhic consideration militating against women's eligibility to serve in positions of communal office is Rambam's ruling, Hilkhot Melakhim 1:5: "A woman may not be established as monarch as it is said '[You shall set] over you a king,' but not a queen. Similarly, with regard to all appointments in Israel, only a man may be appointed to them." Commentaries on Rambam give as the source for this ruling the comments of Sifre, Deuteronomy 17:15. Statements similar to that of Rambam are found in the writings of Ramban, Ran, Rashba, Ritva and Rosh, particularly in their commentaries to Shevu'ot 30a, as well as in those of numerous other early authorities, although it is not certain that all of these authorities endorse Rambam's view that offices other than the monarchy are included in this ban.

With the destruction of the Temple, the statutory death penalty lapsed entirely. In establishing this rule the Gemara, Sanhedrin 52b, cites the biblical passage, "And you shall arise and go up to the place which the Lord your God shall choose. And you shall come unto the priests, the Levites and the judges who shall be in those days …" (Deuteronomy 17:8-9). Judicial authority was vested in the courts, not in the priests and Levites. Reference to priests and Levites in this context is therefore incongruous. The Gemara declares that the juxtaposition of the terms "priests and Levites" with "judges" serves to teach that judges may impose the death penalty only during such periods as the priest performs his priestly functions in conjunction with the sacrificial rituals. The concluding phrase, "and go up to the place which the Lord your God shall choose," serves to establish a second condition, viz., that such penalty may be imposed by the courts only when the Great Sanhedrin sits in "the place which the Lord your God shall choose," i.e., within the precincts of the Temple.¹Citing these considerations, Rabbi Isaac ha-Levi Herzog, Yavneh, Vol. III, no. 1 (Nisan 5709), p. 10, expressed opposition to introduction of capital punishment in the State of Israel. Rambam, Hilkhot Sanhedrin 14:11, codifies both requirements in ruling that the death sentence may not be imposed in the absence of either of these two conditions.²Another impediment to imposition of capital punishment is a lack of qualified judges. In order to sit in judgment in capital cases, as well as in some areas of jurisprudence involving imposition of fines, the judges must be recipients of semikhah or ordination conferred upon them for this purpose. Semikhah was transmitted by the ordainor to the ordainee in an unbroken line of succession having its origin in the appointment by Moses of the seventy elders; see Numbers 11:16-17, 24-25 and Rambam, Hilkhot Sanhedrin 4:1. This chain of transmission was interrupted in the middle of the fourth century as a result of persecution; see Ramban in his gloss to Rambam’s Sefer ha-Miẓvot, miẓvot aseh, no. 153. An attempt to restore the institution of semikhah was made in Safed in 1538 by R. Jacob Berab. This scholar predicated his action upon a ruling of Rambam, Hilkhot Sanhedrin 4:11, to the effect that all the sages residing in Ereẓ Yisra’el even though they themselves lack semikhah, may nevertheless collectively confer ordination and any person so ordained is thereupon privileged to ordain others. This action was bitterly opposed by R. Levi ben Jacob ibn Habib, who, at the time, was the foremost scholar of Jerusalem. The latter scholar composed a treatise entitled Kuntres ha-Semikhah (Venice, 1565) detailing the reasons for his opposition. As a result no further candidates were ordained and the institution of semikhah was allowed to lapse. For a discussion of this controversy see Jacob Katz, “The Ordination Controversy between R. Jacob Berab and R. Levi b. Habib,” Ẓion, XVI (1951), 28-45. A comprehensive list of articles written in recent years dealing with the question of semikhah in conjunction with the issue of reinstitution of the Sanhedrin appears in Nahum Rakover’s Oẓar Mishpat (Jerusalem, 1975), pp. 161-163.

A literal reading of I Samuel 8:5 would seem to indicate that this power is shared by the kings of all nations. The elders of Israel demand of Samuel: "Appoint for us a king to judge us like all the nations," i.e., a monarch empowered to administer "the King's justice." In classic rabbinic sources, the phrase "to judge us" was certainly understood as having that connotation. Rabbenu Nissim Gerondi, Derashot ha-Ran, no. 11, seizes upon this phrase in explaining why the request for establishment of a monarchy aroused Samuel's ire. Appointment of a monarch to serve as the head of the Jewish commonwealth constitutes one of the 613 biblical commandments and its fulfillment is regarded as having become incumbent upon the populace upon entry into the Promised Land.³See Deuteronomy 17:15; Sanhedrin 20b; Rambam, Hilkhot Melakhim 1:1. Rabbenu Nissim explains that a monarch is required for two purposes: 1) to serve as commander-in-chief of the army; and 2) to serve as chief magistrate in administering extra-statutory punishment when necessary to do so to preserve the social fabric. A request for appointment of a king could not, in and of itself, have been a matter for censure. Rabbenu Nissim asserts that Samuel became angry because the request was couched in a manner that gave voice to a perceived need for imposition of "the King's justice." A well-ordered, law-abiding society has no need for the imposition of emergency ad hoc measures by the monarch; the punishments provided by statute and their imposition in accordance with the rigorous standards of due process prescribed by Jewish law should suffice to protect societal concerns. The request presented to Samuel reflected a recognition by the petitioners that their society could not long endure on the basis of criminal procedure hobbled by a two-witness rule and a requirement for prior warning as well as a host of other impediments to actual imposition of penal sanctions. The anticipation by the petitioners of a breakdown of law and order, for which the sole remedy would have been imposition of "the King's justice," bespoke either an unacceptable lack of confidence in themselves or their peers or, even worse, a realistic assessment of moral degeneration.⁴See R. Abraham Benjamin Sofer, Ketav Sofer, Parashat Shoftim, s.v. od nireh li and R. Yechiel Michal Epstein, Arukh ha-Shulḥan he-‘Atid, Hilkhot Melakhim 71:6–7. The thesis herein presented incorporates elements elucidated by Ketav Sofer that are not explicitly formulated by Derashot ha-Ran. Thus, explains Rabbenu Nissim, Samuel had ample cause for distress.⁵Cf. Sanhedrin 20b which declares that the elders of the generation couched their petition in appropriate language as well as Rambam, Hilkhot Melakhim 1:2, who indicates that censure was occasioned by a disdain for the leadership of Samuel.

Rav Moshe also suggests that both Rashi (Kiddushin 76b s.v. Kol) and the Ran (Kiddushin 31b in pages of the Rif, s.v. Garsinan) disagree with the Rambam's opinion. They explain that the source for the rule that a convert may not be appointed to any position of authority is the redundancy of words from the root s.y.m. (verbs of appointing) in Devarim 17:15, the verse that requires the king to be a natural born Jew ("mikerev achecha"). The Torah is teaching that all leadership appointments must be mikerev achecha. Regarding women, however, the prohibition is derived from the word "melech" ("king" - and not queen) and bears no connection to the word "tasim" ("You shall appoint"). Rav Moshe explains that Rashi and the Ran view the prohibition against women as precluding the position of queen but permitting other leadership appointments.

Of even more significance insofar as actual execution of capital punishment is concerned are the rules of evidence governing criminal proceedings under Noachide law. Jewish courts require testimony of at least two credible eye-witnesses for imposition of either corporal or capital punishment. The Bible expressly declares, "At the mouth of two witnesses, or three witnesses, shall he who is worthy of death be put to death" (Deut. 17:6). The testimony of a single witness and, a fortiori, circumstantial evidence, is not admissible.⁵The testimony of witnesses who have actually seen the act may be dispensed with only if culpability can be inferred with absolute certainty from the facts to which eyewitness testimony is presented. For example, Shevu‘ot 46b, states that liability for battery may be established even if witnesses have not observed the act itself provided that the evidence incontrovertibly established (a) that the wound could not possibly be accidental or self-inflicted, e.g., a bite on the back or on the elbow joint; and (b) that no other person was present and hence the defendant must have committed the act. Tosafot, Shevu‘ot 34a, asserts that such evidence may be admitted in capital cases as well. Rambam, Sefer ha-Mizvot, mizvot lo ta'aseh, no. 290, basing himself upon Mekhilta 20:211, regards the verse "the guiltless and righteous you shall not kill" (Exodus 23:7) as an admonition addressed to the Bet Din directing its members not to execute judgment when it is at all possible that the accused is innocent, i.e., when the evidence is circumstantial in nature.

The following is a fundamental principle has been passed to us as a tradition from earlier generations: If a certain Halachah is unclear to you, go and see what the common practice is. This is true because Hashem, in His love for His nation, would not have allowed the broader community to go follow a minority opinion had that authority not articulated a viable approach.¹⁰See the commentary of the Ramban to Devarim 17:11 for a possible basis for this argument.

11. A testimony sent in writing to the court is not testimony because the Torah states, “al pi shenayim edim”- it must be from their mouths and not from their writing. This is in fact our custom, not like those who allow it for otherwise valid witnesses who are not mutes.

While adducing no evidence for his contention, Rabbi Levinson advances an interesting argument in support of the thesis that the prohibition against the appointment of a female monarch is not applicable to contemporary political or communal office. Rabbi Levinson argues that the prohibition, while encompassing not only the monarchy but lesser offices as well, applies only to those offices whose holders enjoy the prerogatives of lifetime incumbency and hereditary succession. In the opinion of Rabbi Levinson, the verse " … that he may prolong his days in his kingship, he and his children" (Deuteronomy 17:20) serves not merely as a description of the nature of royal office but also as a limitation upon the prohibition "a king, but not a queen" contained in the earlier verse. According to this argument, election or appointment of a woman to a term of office for a specific number of years is not at all proscribed.

And this commandment is only practiced in the Land [of Israel], since we only judge capital cases in the Land. And whoever has [it] in his hand to make a judgment and does not do so, has negated this positive commandment. And his punishment is great - 'as were it no for the fear of [judgment], man would swallow his fellow alive.' And Ramban, may his memory be blessed (on Sefer HaMitzvot LaRambam, Shorashim 14) does not count this commandment in his calculation. And so [too] does he not count any of the four death penalties of the court - which are stoning, burning, killing (decapitation) and strangulation - that Rambam, may his memory be blessed, counted as four commandments. And [Ramban] said that through the verse of "and you shall destroy the evil from within you" (Deuteronomy 17:7), the Torah commanded more generally that we destroy those that do evil from among us; and within it are included all of the laws. And when Scripture specifies the laws according to their punishments afterwards, it is not considered a [separate] commandment, as it is only an elucidation of the topic. And 'the sage will choose for himself that which is straight in his eyes.'

Rabbenu Nissim, Derashot ha-Ran, no. 11, however, asserts that this power is vested solely in the king, at least insofar as offenses "against man" are concerned. If the Bet Din enjoys such power at all, asserts Rabbenu Nissim, it is limited to offenses "against God." Rabbenu Nissim concedes, however, that in the absence of a king such monarchical prerogatives are vested in the Great Sanhedrin. See also Or Sameaḥ, Hilkhot Rozeaḥ 3:10. Abarbanel, in his commentary on Deut. 17:8, takes issue with Rabbenu Nissim but apparently maintains that only the Great Sanhedrin, as distinct from inferior courts, possesses this power. Similarly, Nemukei Yosef, Sanhedrin 52b, declares that the power to impose capital punishment in this manner is limited to the Great Sanhedrin. Similarly, Teshuvot ha-Rosh, klal 17, no. 8, states that capital punishment may be imposed only by a Sanhedrin. According to Nemukei Yosef, inferior courts may impose extraordinary forms of corporal punishment but may not execute malefactors. Rabbenu Nissim, Hiddushei ha-Ran, Sanhedrin 46a, states that extra-statutory punishment can be imposed only by a Bet Din which is "expert and ordained as [were] Shimon ben Shetaḥ and his colleagues." These positions are rejected by Shulḥan Arukh, Hoshen Mishpat 2:1. See also Teshuvot R. Ya'akov ben ha-Rosh, no. 58; Teshuvot Rivash, no. 251; Me'iri, Sanhedrin 52b; and Teshuvot Maharam me-Lublin, no. 138. Cf., however, Urim ve-Tumim, Urim 2:2. Teshuvot ha-Rashba, V, no. 238, states that the death penalty may be imposed only by the greatest authority of the generation; see also Tur Shulḥan Arukh, Hoshen Mishpat 2:1. For an analysis of Rambam's position see Birkei Yosef, Hoshen Mishpat 2:3 and R. Benjamin Rabinowitz-Teumim, Ha-Torah ve-ha-Medinah, IV, 56-58.

Of interest in this regard is the solution advanced by Rabbenu Nissim, Derashot ha-Ran, no. 11, to the frequently posed question regarding Samuel's criticism of the populace for demanding a king as recorded in I Samuel 8:6. Those requests were, after all, ostensibly but for the fulfillment of a biblical obligation incumbent upon them. Rabbenu Nissim answers that Samuel was distressed, not at the desire for the establishment of a monarchy, but because the people expressed themselves by saying, "give us a king to judge us." A king to lead them in battle was necessary, but in a well ordered society no deterrent to potential wrong-doers beyond the established legal and judicial system should be necessary. The request for "the king's justice" reflected the conviction that administration of Torah law by the Bet Din would be insufficient and, accordingly, betrayed an ethical deficiency. A similar explanation, identical in all salient points, is also advanced by R. Abraham Samuel Benjamin Sofer in his commentary on the Bible, Ketav Sofer, Deut. 17:14.

1. Rambam records the prohibition against residence in Egypt both in Sefer ha-mizvot, negative commandment no. 46, and in Mishneh Torah, Hilkhot Melakhim 5:7-8. In Sefer ha-mizvot Rambam cites three separate verses as sources for this prohibition: "You shall henceforth return no more this way" (Deuteronomy 17:16); "… by the way whereof I said unto you, 'You shall see it no more again' " (Deuteronomy 28:68); and "For whereas you have seen Egypt today, you shall see them again no more forever" (Exodus 14:13). In citing all three verses as negative commandments Rambam follows the Palestinian Talmud, Sukkah 5:1. The Babylonian Talmud, Sukkah 51b, however, cites only Deuteronomy 17:16. Maharsha explains that, for the Babylonian Talmud, Exodus 14:13 is a promise rather than a prohibition. Deuteronomy 28:68 is presumably viewed as a threatened punishment rather than as a prohibition. Basing himself upon the Palestinian Talmud, Rambam declares that the prohibition is limited to permanent residence. Accordingly, it is permissible to return to Egypt for business purposes or for other reasons which involve only temporary domicile. Rambam further rules that it is permissible to reside in Egypt if the land is conquered by "a king of Israel" with the approval of the Sanhedrin "since [the Torah] forbids [us] only return to [Egypt] as individuals or to dwell therein while it is in the hands of idolaters." The reason, as explained by Rambam, is that settlement in Egypt is forbidden because of the degenerate moral character of the ancient Egyptians. Reference to the immorality of ancient Egypt is made in Leviticus 18:13. Hence, when Egypt is under the dominion of Israel, Jews are permitted to reside in that land.

2. R. Eliezer of Metz, Sefer Yere'im, no. 309, opines that the ban against settlement in Egypt is not a restriction against residence in Egypt but a restriction against return to the land. As a prohibition against return, the commandment restricts only "return … this way" (Deuteronomy 17:16), i.e., by way of the route travelled by our ancestors in departing from Egypt. R. Joseph Saul Nathanson, in his commentary on the Pentateuch, Divrei Sha'ul, remarks that the detailed scriptural description of the route travelled by the generation of the Exodus is of more than historical significance. It serves to delineate the route by which Jews are forbidden to return to Egypt. Return by other routes is permitted. Ritva, Yoma 38a, also interprets Sefer Yere'im in this fashion. To'afot Re'em, a commentary on Sefer Yere'im, refutes this interpretation by citing Sukkah 51b which declares that the Jewish community of Alexandria was annihilated because its members had established a settlement in Egypt in violation of the biblical commandment. According to Divrei Sha'ul's analysis, the Alexandrian Jews, who presumably did not return via the route mapped out in the Bible, should not have been deemed transgressors. Since the Gemara reports that they were punished, it may be inferred that the prohibition is broader than asserted by Divrei sha'ul. Teshuvot Dei Hashev, Yoreh De'ah, no. 15, and Ma'aseh Bezalel, no. 573, interpret Sefer Yere'im as meaning that it is forbidden to return to Egypt from the Land of Israel but that return to Egypt from other countries is not forbidden.

3. Rabbenu Baḥya, in his commentary on the Bible, Deuteronomy 17:16, states that this prohibition is directed against living among Egyptians rather than against establishing residence in the land of Egypt and is designed to prevent Jews from imitating the immoral life-style of the Egyptians. According to Rabbenu Baḥya, the prohibition forbids only living among the degenerate Egyptians of the time of the Exodus and was not intended to apply to later generations. This is also the position of Rabbenu Meyuḥas ben Eliyahu, as found in his recently published commentary on the Bible (Jerusalem, 5728). The obvious problem with regard to this position is that it appears to be contradicted by the previously cited statement of Sukkah 51b to the effect that the Jews of Alexandria sinned in settling in Egypt.

Rashi explains that the prohibition against a king amassing horses is predicated upon the fear that a king who maintains an interest in horses would send purchasing agents to Egypt, a country once renowned for fine horses, and thus violate the prohibition against returning to Egypt. Ramban, Commentary on the Bible, Deuteronomy 17:16, rejects this rationale, pointing out that the Palestinian Talmud explicitly permits return to Egypt for purposes of commerce.¹⁰Cf., however, Ḥayyim Sha’al, who offers a different interpretation of Rashi’s position.

The laws of the commandment: For example, the [types of] 'torn' animals that were [instructed] to Moshe at Sinai, and they are the eight main categories (avot, Chullin 54a): the clawed; the pierced; the lacking; the removed; the split; the torn; the fallen and the broken. And the clawed is the most severe of all, since it is explicit in the Torah. And hence, they, may their memory be blessed, said (Mishneh Torah, Laws of Ritual Slaughter 5:3) that any doubt that comes about it [renders it] forbidden. And with other 'torn' animals, there are some wherein a doubt is permissible. And each and every one of these main categories has many, many derivatives, as their listings come in the Gemara. And the tally of all the 'torn' animals that it is possible to find in a domesticated animal, a wild animal or a bird that comes in our hand from their listing - as it would appear from the words of the Gemara - is seventy-two, with one more in the birds than the animals. And they cannot be added to and they cannot be subtracted from; since it is possible that a domesticated animal or a wild animal or a bird could survive from any wound contracted by [other ailments], except for these that the Sages enumerated in the early generations and about which the Israelite courts agreed - and even [if] we know by way of medicine that its end is not to survive. And all of these wounds that they enumerated and said that they were [in the category of] 'torn' animals - even if it appears according to the ways of medicine in our hands that some of them do not kill and it is possible that it will survive it - you only have what the Sages enumerated, as it is stated (Deuteronomy 17:1), "According to the instruction." And each one of the seventy two 'torn' animals that we mentioned is elucidated at length with all of its conditions in Tractate Chullin.

The laws of the commandment: For example, the [types of] 'torn' animals that were [instructed] to Moshe at Sinai, and they are the eight main categories (avot, Chullin 54a): the clawed; the pierced; the lacking; the removed; the split; the torn; the fallen and the broken. And the clawed is the most severe of all, since it is explicit in the Torah. And hence, they, may their memory be blessed, said (Mishneh Torah, Laws of Ritual Slaughter 5:3) that any doubt that comes about it [renders it] forbidden. And with other 'torn' animals, there are some wherein a doubt is permissible. And each and every one of these main categories has many, many derivatives, as their listings come in the Gemara. And the tally of all the 'torn' animals that it is possible to find in a domesticated animal, a wild animal or a bird that comes in our hand from their listing - as it would appear from the words of the Gemara - is seventy-two, with one more in the birds than the animals. And they cannot be added to and they cannot be subtracted from; since it is possible that a domesticated animal or a wild animal or a bird could survive from any wound contracted by [other ailments], except for these that the Sages enumerated in the early generations and about which the Israelite courts agreed - and even [if] we know by way of medicine that its end is not to survive. And all of these wounds that they enumerated and said that they were [in the category of] 'torn' animals - even if it appears according to the ways of medicine in our hands that some of them do not kill and it is possible that it will survive it - you only have what the Sages enumerated, as it is stated (Deuteronomy 17:1), "According to the instruction." And each one of the seventy two 'torn' animals that we mentioned is elucidated at length with all of its conditions in Tractate Chullin.

And Rambam, may his memory be blessed, wrote (Mishneh Torah, Laws of Testimony 3:4) that the main testimony of the Torah is from the mouth of witnesses and not from the mouth of their writing, as it is stated (Deuteronomy 17:6), "By the mouth, etc."; except that because of the betterment of the world, such that people would find [those from whom] to borrow, the Sages ordained that we establish law with regard to money according to witnesses in a deed, the same as from their mouth. But Ramban, may his memory be blessed, (in the Sefer HaMitzvot at the end of the second root) challenged him greatly about this in the Sefer HaMitzvot. And if I would come to write the whole matter, it would be lengthy. But the essence of the thing is that Ramban, may his memory be blessed, holds that the testimony of a deed is from Torah writ, as it is written (Jeremiah 32:44), "write in the book, and seal."

That is that He commanded us to listen to the Great Court and to do everything that they command us, to forbid and to permit. And there is no difference in this whether the matter is one that they have understood from reason, that they have derived from analogies by which the Torah is expounded, that they agreed that it was prohibited by the Torah or according to some content that that they think is correct and by which the Torah is reinforced - [about] all of it are we obligated to listen, to do and to practice, according to their words; we are not to diverge from this. And that is His, may He be blessed, saying, "In accordance with the instructions given you" (Deuteronomy 17:11). And the language of the Sifrei (Sifrei Devarim 154:3) is, "'And [the judgment] that they tell you, shall you do' - that is a positive commandment." And the regulations of this commandment have already been explained at the end of Sanhedrin. (See Parashat Shoftim; Mishneh Torah, Rebels 1.)

That He prohibited the witness from speaking about the case about which he testified. And even if he is a sage and knowledgeable, he may not be a witness, [as well as] a judge and a claimant. Rather he must testify about what he saw and be silent; and the judges will do with his testimony what seems fit to them. And the prohibition comes to not speak anything beyond the testimony - but this is only about capital cases. And that is His, may He be exalted, saying, "but one witness shall not testify against any person to cause him to die" (Numbers 35:30). And the prohibition about this was repeated with His saying, "at the mouth of one witness, he shall not be put to death" (Deuteronomy 17:6) - meaning to say, he shall not be put to death from the claim of the witness. And in Sanhedrin (Sanhedrin 33b), they said, "'But one witness shall not testify against any person' - whether to exonerate or to incriminate." And they explained [that] the reason for this is because it is as if he is predisposed towards his testimony. But it is only in capital cases that it is forbidden [for a witness] to argue - whether for acquittal or for incrimination. (See Parashat Masei; Mishneh Torah, Testimony 5.)

That the witness not issue a ruling in the case that he is testifying about in capital punishments: That the witness not speak about the case that he is testifying about in capital punishments, except for his saying his testimony alone - and even though he is educated and wise; as the witness is not made into a judge in capital punishments, as it is stated (Numbers 35:30), "and a single witness should not respond about a soul for death." And Rambam, may his memory be blessed, wrote (Sefer HaMitzvot LaRambam, Mitzvot Lo Taase 291), "And the negative commandment about this matter is repeated, as it is stated (Deuteronomy 17:6), 'he shall not be killed by the mouth of one witness' - meaning to say, he shall not be killed by the ruling of the witness. And they said in Sanhedrin 33b-34a, '"And a [...] witness should not respond about a soul," whether for innocence or whether for guilt.' And they explained that the reason for this is that it appears as if he is biased in his testimony. And this matter that he cannot respond - whether for innocence or whether for guilt - is only with capital punishments."

To not offer a sacrifice of [an animal] with a temporary blemish: That we have been prevented from offering a beast that has a blemish in it, and even if it is a temporary blemish. And about this is it stated (Deuteronomy 17:1), "You shall not slaughter to the Lord, your God, an ox or a sheep that has a blemish on it, etc." And it is elucidated in Sifrei Devarim 147 that the verse is speaking about a temporary blemish.

To listen to the voice of the court at all times: To listen to the voice of the Great Court and to do all that they command us in the paths of the Torah - regarding the forbidden and the permitted, the impure and the pure, the liable and the exempt and in everything that appears to them to be a reinforcement and enhancement to our religion. And about this is it stated (Deuteronomy 17:10), "And you shall act according to the word that they tell you." And it is repeated adjacently (Deuteronomy 17:12) to strengthen the thing, "According to the instruction that they instruct you and to the judgement that they say to you shall you act." And there is no difference in this, whether the thing that they see is from their own intellects or is something that they extracted by one of the comparisons through which the Torah is expounded, or something that they agreed is from the secrets of the Torah or they see that the thing is like this in any other way - in everything, we are obligated to listen to them. And the proof that this is from the tally of positive commandments is their, may their memory be blessed, saying in Sifrei Devarim 154, "'And according to the judgement that they say to you shall you act' - this is a positive commandment."

To listen to the voice of the court at all times: To listen to the voice of the Great Court and to do all that they command us in the paths of the Torah - regarding the forbidden and the permitted, the impure and the pure, the liable and the exempt and in everything that appears to them to be a reinforcement and enhancement to our religion. And about this is it stated (Deuteronomy 17:10), "And you shall act according to the word that they tell you." And it is repeated adjacently (Deuteronomy 17:12) to strengthen the thing, "According to the instruction that they instruct you and to the judgement that they say to you shall you act." And there is no difference in this, whether the thing that they see is from their own intellects or is something that they extracted by one of the comparisons through which the Torah is expounded, or something that they agreed is from the secrets of the Torah or they see that the thing is like this in any other way - in everything, we are obligated to listen to them. And the proof that this is from the tally of positive commandments is their, may their memory be blessed, saying in Sifrei Devarim 154, "'And according to the judgement that they say to you shall you act' - this is a positive commandment."

To not stray from their words: That we were prevented from disagreeing with the masters of the tradition, peace be upon them, and from changing their words and to not remove ourselves from the commandments in all matters of the Torah. And about this is it stated (Deuteronomy 17:11), "you shall not stray from the matter that they tell you right or left." And they, may their memory be blessed, said in Sifrei Devarim 154, "'You shall not stray' - this is a negative commandment."

From the laws of the commandment is that which they, may their memory be blessed, said (Sanhedrin 87a), that even though one who transgresses that which the Sages explained about the words of the Torah, transgresses this negative commandment of "you shall not stray"; nonetheless a man does not have the designation of a rebellious judge - known in the Gemara at the end of Sanhedrin 89a, who is liable for the death penalty - until he disagrees with the Great Court (see Mishneh Torah, Laws of Rebels 3:5, 7), and that he is a sage that has reached [the level] of pronouncing decisions [and] is ordained like the [members of the] Sanhedrin, and that he disagrees with them on a matter the volitional transgression of which [brings] excision and the inadvertent violation of which [brings] a sin-offering, and he instructs to do according to his decision or [himself] does the act according to his decision, as it is stated (Deuteronomy 17:12), "who wantonly does" - and not that he only instructs. But if he is a student that has not reached [the level] of pronouncing decisions, and makes a decision; he is exempt, as it is stated (Deuteronomy 17:8), "If a matter is baffling to you" - one who only a baffling thing is beyond him. And so [too,] if he found them outside of the Compartment of Paved Stone (in the Temple) and he rebelled against them, he is exempt, as it is stated, "and you will arise and go up to the place" - teaching that the place causes (is a requirement for) the death penalty.

From the laws of the commandment is that which they, may their memory be blessed, said (Sanhedrin 87a), that even though one who transgresses that which the Sages explained about the words of the Torah, transgresses this negative commandment of "you shall not stray"; nonetheless a man does not have the designation of a rebellious judge - known in the Gemara at the end of Sanhedrin 89a, who is liable for the death penalty - until he disagrees with the Great Court (see Mishneh Torah, Laws of Rebels 3:5, 7), and that he is a sage that has reached [the level] of pronouncing decisions [and] is ordained like the [members of the] Sanhedrin, and that he disagrees with them on a matter the volitional transgression of which [brings] excision and the inadvertent violation of which [brings] a sin-offering, and he instructs to do according to his decision or [himself] does the act according to his decision, as it is stated (Deuteronomy 17:12), "who wantonly does" - and not that he only instructs. But if he is a student that has not reached [the level] of pronouncing decisions, and makes a decision; he is exempt, as it is stated (Deuteronomy 17:8), "If a matter is baffling to you" - one who only a baffling thing is beyond him. And so [too,] if he found them outside of the Compartment of Paved Stone (in the Temple) and he rebelled against them, he is exempt, as it is stated, "and you will arise and go up to the place" - teaching that the place causes (is a requirement for) the death penalty.

To appoint a king from Israel: That we were commanded to appoint upon ourselves a king from Israel, so that he can gather us all together and administer us according to his desire. And about this is it stated (Deuteronomy 17:15), "Surely place upon yourself a king, etc." And in Sifrei Devarim 157, "'Surely place upon yourself a king' is a positive commandment."

From the laws of the commandment is that which they, may their memory be blessed, said (Mishneh Torah, Laws of Kings and Wars 1:3) that we do not a priori set up a king in Israel except by the word of a court of seventy elders and by the word of a prophet - like Yehoshua, as Moshe, our teacher, and his court appointed him; and like Shaul and David, as Shmuel HaRamati and his court appointed them. And [also] that which they said (in Sifrei Devarim 157), that we do not set up a woman to the monarchy, as it is stated, "a king" - and not a queen. And when they would set up a king, they would anoint him with anointing oil (Mishneh Torah, Laws of Kings and Wars 1:7). And once he has been appointed, he acquires the monarchy for himself and for his sons, as it is written (Deuteronomy 17:20), "in order that he will have length of days upon his monarchy; he and his sons, among Israel." If he [only] left over a minor son, we preserve the monarchy for him until he grows up, as Yehoyada did for Yoash. And anyone who is precedent for the inheritance is precedent for the inheritance of the monarchy. And the big son precedes the small son. And it is not just the monarchy, but all positions of authority - in actuality or as an honorary title from the honorary titles - and all appointments in Israel are an inheritance for a man, such that his son acquires it after him, and his son's son, and his son's son's son forever. And this is when he fills the place of his fathers with the fear of Heaven. But if there is no fear of Heaven in him - even though he has great wisdom - there is no need to say that we do not appoint him to an appointment of the appointments in Israel, but it is [even] fitting to hate him and distance him. And about them, David stated (Psalms 5:6), "[You] have hated all doers of iniquity."

To not establish a foreign king over us: That we were prevented from establishing a man that is not from the seed of Israel - and even if he is a righteous convert - [as] king upon us. And about this is it stated (Deuteronomy 17:15), "You may not place upon yourself a foreign man that is not your brother." And they, may their memory be blessed, said in Sifrei Devarim 157, "'You may not place upon yourself a foreign man' - this is a negative commandment." And likewise, it is not fitting to appoint upon us for anything - not a Torah appointment and not a state appointment - a man that is from the 'congregation of converts,' until his mother be from Israel, from that which is written, "You shall surely place, etc."; and they, may their memory be blessed, made a precise inference (Kiddushin 76b), "Any placing that you do shall only be from among your brothers."

That the king not amass many horses: That the king that is ruling over us not amass many horses for himself, besides those needed for his chariot and the chariots of his horsemen; and as it is written (Deuteronomy 17:16), "he shall not amass many horses for himself." And the content of the commandment is that he should not have horses that run in front of him simply for his glory. And even over one idle horse does he transgress this. However if he has horses in his stables prepared for war and sometimes his horseman ride upon them, this is not at all included in this negative commandment; as the central matter is only from the angle that we said - that he should not have idle horses always go before him for stature and glory, but rather he should have only one animal upon which to ride.

To not ever dwell in the Land of Egypt: That we not further go back on the way to Egypt ever; meaning to say that we do not establish our residence in Egypt. And about this is it stated (Deuteronomy 17:16), "and the Lord said to you, 'You shall not further go back on this way again.'" And the prevention of this is repeated three times: They, may their memory be blessed, said (Mekhilta d'Rabbi Yishmael 14:13:2), "In three places did the Torah warn not to return to the Land of Egypt [...] In the three they returned, and in the three they were punished." And these three places [are] the one we mentioned; the second is "by the way that I said to you, 'You shall not further again, etc.'" (Deuteronomy 28:68); and the third is "as that which you see Egypt today, you shall not further, etc." (Exodus 14:13) - and even though it appears to be [only] a story from its revealed meaning, the tradition comes about it that it is a prevention (a negative commandment).

That the king not amass many wives: That the king not amass many wives for himself. And about this is it stated (Deuteronomy 17:17), "And he shall not amass many wives for himself." And the reason for the commandment is elucidated in the verse, as women sway the hearts of their husbands - meaning to say that they seduce them to do what is not fitting to do through the constancy of their competition, their many words and their slipperiness.

That the king not amass much silver and gold for himself: That the king not amass much plenitude of money - meaning to say that he only have under his hand the amount of what he needs for his chariot and his designated servants. And about this is it stated (Deuteronomy 17:17), "And much silver and gold, shall he not amass for himself."

From the roots of the commandment is that which is elucidated in Scripture, "That his heart not get haughty, etc." (Deuteronomy 17:20).

That the king write a second Torah scroll for himself: That it is a commandment on the king that will be over Israel to write for himself a specific scroll of the Torah, from the angle of [his being king], that it be with him always and [from] which he read - besides the other Torah scroll which is a commandment for him, like every one of Israel, to write, as we will write in the last commandment of the book, with God's help (Sefer HaChinukh 613). And about this is it stated (Deuteronomy 17:18), "and he shall write for himself a copy of this Torah, etc."

The commandment upon the court to stone the one liable: That the court is obligated to pelt with stones one who has transgressed some sins. And one of them is one who has sexual relations with an engaged maiden, as it states (Deuteronomy 22:24), "and you shall stone them with stones." And this is one of the four well-known death penalties of the court - and they are stoning, burning, killing (beheading) and strangulation. And in Sanhedrin 49b in the chapter [entitled] Arba Mitot, Rabbi Shimon and 'our rabbis' disagreed [regarding] which is more severe, stoning or burning. And it is 'our rabbis' that said that stoning is more severe. And the matter of stoning is thus (see Mishneh Torah, The Sanhedrin and the Penalties within their Jurisdiction 15:1): Four ells distant from the house of stoning, we remove the clothes of the man who is obligated in stoning, until he remains naked, and [then] we cover his nakedness in front of him. And a woman is not stoned naked but rather with one garment. And the house of stoning was two stories tall. And he goes up there - [as do] his witnesses - and his hands are tied. And one of the witnesses pushes him on his midriff and he falls to the ground on his heart. And if he does not die from the pushing, the witnesses pick up a stone that was laying there - [weighing] a load for two people - and they release their hands and hurl the stone on his heart. And if he [still] doesn't die, his stoning is by all of Israel, as it states (Deuteronomy 17:7), "The hand of the witnesses shall be upon him first, etc."

All (types of) work (for whose transgression) a person is guilty on the Sabbath is also guilty on Yom Kippur. And all types of work for whose transgression on the Sabbath a person is free from punishment but are still prohibited, are also prohibited on Yom Kippur in a like manner except that on the Sabbath a conscious sin is punishable by stoning,⁷⁹Stoning, sekilah, סקילה, is a Biblical form of capital punishment which was the standard penalty for crime in all ancient civilizations. In the Torah there are two explicit methods of executing a criminal or a sinner; stoning and burning. According to the Talmud, the Torah has four methods of execution: stoning, burning, beheading, and strangling, (See B. Sanhedrin 49b., ff).
Stoning was an instinctive violent expression of popular wrath, (Exodus 17:4, 8:22; Numbers 14:10; I Samuel 30:6; I Kings 12:18; II Chronicles 10:18) and often in the Bible it is the prescribed mode of execution (Leviticus 20:2, 27, 24:16; Numbers 15:35; Deuteronomy 13:11, 17:5, 21:21, 22:21, et al). Originally, the whole community participated in the stoning and were required to throw stones at the guilty person. Stonings were probably the standard form of judicial execution in Biblical times, (Leviticus 24:23; Numbers 15:36; I Kings 21:13; II Chronicles 24:21).
The Mishna (Sanh.6:4) states that a "stoning place" was established where instead of a person being pelted by stones, the convicted person would be pushed down from a high place to his death provided it was not too high so as to mutilate the body which was a concern of the rabbis. It also was not to be too low so the death would be instantaneous. The reason for the stoning place was that the scriptural rule states "The hands of the witnesses shall be first upon him to put him to death," (Deuteronomy 17:7) and then afterwards the "hand of all the people (should be on him)", (Deuteronomy 17:7). To insure that the witnesses put him to death they were the ones to push him and thereby be first to put him to death. Thus this method of "stoning" became acceptable as opposed to the actual throwing of stones. This also seemed the more "humane" way of carrying out capital punishment as the convicted person died more quickly and the danger of mutilation was reduced. In Maimonides' comment to Sanhedrin 6:4 he stated that it really made no difference if stones were thrown at one or if one were thrown at stones.
cf., Haim Hermann Cohn, v. 5, pp. 142-43. but on Yom Kippur it is punishable by karet.⁸⁰Karet, כרת; see footnote 78. Everything that is forbidden to be moved (or handled) on the Sabbath is also forbidden to be moved (or handled) on Yom Kippur, (but it is permitted to clean vegetables and to open (shell) nuts from the Minḥah time⁸¹Minḥah, מנחה, a time designating afternoon, meaning after the six and one half hour or after 12:30 P.M. according to our present day time system. (See footnote 40 for a more complete explanation). onward when (Yom Kippur) falls on a weekday, but nowadays (presently) it is customary to forbid that.)
Hagah: If a fire occurs on Yom Kippur, it is permitted to save one meal for the need of the night (following Yom Kippur) as one (may) save on the Sabbath the afternoon meal,⁸²The afternoon meal on the Sabbath is also referred to as Se'udah Shelishit, the third meal which is eaten on the Sabbath between the Minḥah, Afternoon Service (see footnote 40) and the Ma'ariv, Evening Service (see footnote 144). (ר״ן פרק כל כתבי),⁸³Rabbenu Nissim on the chapter Kol Khit-vey, כתבי ר״ן פרק כל, which is a commentary on the talmudic tractate Shabbat.
For Rabbenu Nissim, ר״ן; see footnote 47. and it is already explained in section 334⁸⁴See in the Shulḥan Arukh, Oraḥ Ḥayyim, chapter 334 which contains twenty-seven paragraphs on the laws that apply when a fire breaks out on the Sabbath. These same laws apply regarding a fire, according to Isserles to Yom Kippur. (as to) how to act at this time when a fire (occurs) on the Sabbath and the same law (applies) for Yom Kippur. It is customary that the children play with nuts (אגודה ומהרי״ל).⁸⁵Agudah and Maharil, אגודה ומהרי״ל.
The Agudah, אגודה, is a collection of halakhic decisions derived from talmudic discussions and arranged in the order of the talmudic tractates. It was written by Alexander Suslin ha-Kohen of Frankfort who died in 1349. The Agudah was published in Cracow in 1571 and it also included novellae of his own as well as those of his predecessors, and a commentary and collection of halakhot to the minor tractates and to the Mishnayot of the orders Zera'in and Tohorot. The language of the Agudah is very concise and it is evident that it was written quickly under the threat of the persecutions of the time since Suslin died a martyr's death in Erfurt. Suslin was the last of the early German halakhic authorities. This German talmudic scholar was born Erfurt where he taught, as well as in Worms, Cologne, and Frankfort.
The Agudah, Suslin's most famous work, gives halakhic rulings in concise form and it ignores differences of opinion. He used as sources Mordecai b. Hillel and Asher b. Jehiel. It is often necessary to consult the work of these two scholars to understand fully the Agudah. Jacob Weil (see footnote 27) wrote a digest to the work called Ḥiddushei Agudah which was published in Venice in 1523 and accompanies the Agudah. Later halakhic authorities such as Jacob ha-Levi Moellin (see footnote 8) and Moses Isserles considered his decisions authoritative and they quoted from him. Isserles mentioned the Agudah often in his glosses to the Shulḥan Arukh.
Editorial Staff, E. J., v. 2, p. 585.
Maharil, מהרי״ל; see footnote 8. One should not object to them (the children) even before the Afternoon Prayer⁸⁶Minḥah, מנחה; see footnote 40., and the custom is widespread with respect to the mentioned law of breaking nuts, (ד״ע).⁸⁷Da'at Aẓmo, ד״ע, Isserles' own opinion; see footnote 38.