Halakhah su Genesi 34:13

Jewish thought—and law—is based upon an entirely different set of premises. Man is bound by divinely imposed imperatives which oblige him to be concerned with the needs of his fellow. Some of these obligations are entirely personal. Others either could not possibly be discharged by any person acting independently or, if directed to individuals, would constitute an inordinate burden. Hence such obligations become the responsibility of society at large. According to Nachmanides,¹Commentary on the Bible, Gen. 34:13. the very first divinely commanded system of law, the Noachide Code, contains a single positive commandment, dinim, which translates into a general obligation to promulgate laws and to establish standards regulating the manifold areas of interpersonal intercourse. Jewish law recognizes not only the reciprocal dependency of members of the human race, but also that the human condition requires that the governing authority, acting as the representative of society as a whole, be endowed with the broad powers necessary for the promotion of social welfare.

The Ramban (commentary to Bereishit 34:13 and 49:5-6) strongly disagrees with the Rambam’s opinion. While he believes that Shimon and Levi were justified in killing Shechem and Chamor, he argues that the killing of the other males of Shechem was entirely unjustified. The Ramban presents two basic arguments for his position. Firstly, the residents of Shechem did nothing wrong to Yaakov’s family. The Ramban asserts that the residents of an area do not deserve death for failure to control the evil actions of their leader. He adds that even if the people did in fact deserve to die due to other violations of the Noahide laws, Shimon and Levi were not authorized to execute such punishment.

The obligations and powers of non-Jewish courts are markedly different. Gentiles are not bound by the 613 commandments revealed to Jews at Sinai but are obligated to obey the "Seven Commandments of the Sons of Noah." The Noachide Code is primarily restrictive rather than prescriptive in nature and bans reprehensible activities such as murder, theft, sexual immorality, etc. The last in this series of commandments is known as "dinin." The specific nature of this precept is the subject of disagreement among early rabbinic authorities. Ramban, in his commentary on the Bible, Genesis 34:13, understands this commandment as a general obligation with regard to the establishment of laws and regulations essential to the maintenance of a social order, e.g., laws governing commerce and interpersonal behavior, laws banning theft and fraud, laws regulating payment of wages, bailment, etc.³Teshuvot Rema, no. 10 and Teshuvot Ḥatam Sofer, VI, no. 14, maintain that in these areas Jewish law in all its details is incorporated in the Noachide Code by virtue of the commandment concerning dinin; Ha‘amek She’elah, She’ilta 2:3, asserts that while non-Jews are commanded to establish a system of jurisprudence, the detailed regulations of such a system are left to their discretion. Even he-Azel, Hilkhot Malveh ve-Loveh 27:1 appears to accept the latter view. Rambam understands the substance of this commandment to be significantly different. Rambam, Hilkhot Melakhim 9:14, formulates this obligation as follows:

The Maharal (Gur Aryeh to Bereishit 34:13) adopts a compromise approach between the Rambam and the Ramban. On the one hand, he agrees with the Ramban that the people of Shechem cannot be held accountable for the actions of their leader, arguing that their failure to execute dinim was due to coercion by their leaders.

A nochri may be killed for failing to run a just society (dinim). The Rambam (Hilchot Melachim 9:14), on this basis, justifies Shimon and Levi’s assassination of all of the males in Shechem (Breishit 34). The Rambam believes that all of the males in the city were guilty of failing to punish those who kidnapped and imprisoned Dinah. The Ramban (Breishit 34:13 and 49:5-6), who disagrees with the Rambam’s evaluation of this episode, does not criticize the Rambam regarding this particular point.⁴⁹For a more thorough discussion of this topic and its halachic implications, see Gray Matter 3:211-223. It seems that he agrees that a legitimate authority may hold a nochri responsible to do whatever is in his power to help the functioning of a just society, which includes insuring that innocent people are not murdered. Thus, a legitimate authority may torture an individual in order to extract information that will insure justice by preventing murder.

Rambam's position may be understood on the basis of a responsum authored by Rabbi Moses Sofer, Teshuvot Hatam Sofer, Likkutim, no. 14. The primary question addressed by Hatam Sofer in that responsum is whether a non-Jewish judge may accept a bribe. His response is that, although the biblical injunction "Thou shalt not take a bribe"²⁴Deuteronomy 16:19. is addressed to Jews and not to Noahides, nevertheless, a Noahide is commanded to render a true and just verdict and hence he dare not accept a bribe for purposes of subverting justice.²⁵For further discussion of bribery under the Noahide Code see Ramban, Commentary on the Bible, Genesis 34:13; R. Joseph Saul Nathanson, Teshuvot Sho’el u-Meshiv, Mahadura Kamma, I, no. 230; Encyclopedia Talmudit, vol. III, p. 355, note 256; R. Bernard Chavel, Peirush Ramban al ha-Torah, I, 192, s.v. u-be-Yerushalmi; R. Jonathan Eibeschutz, Urim ve-Tumim 9:1; R. Joshua Leib Diskin, Teshuvot Maharil Diskin, II, Kuntres Aḥaron, no. 5, sec. 223. A judge who knowingly renders an unjust judgment, opines Hatam Sofer, is guilty of a capital crime under the Noahide Code. Accordingly, he rules that a Jew who presents a bribe to a non-Jewish judge, not only wrongs his adversary, but is also guilty of "placing a stumbling-block before the blind" in causing the judge to issue an unjust decision. Hatam Sofer then proceeds to distinguish between civil actions and criminal proceedings. Since bribery of a gentile is forbidden only if the bribe is designed to assure a favorable judgment without regard to the merits of the case, a gift designed to assure only impartial deliberation and expeditious disposition of the case is not prohibited.²⁶In contradistinction to the law governing Noahide judges, a Jew may not accept a gift from a litigant even if it is only of trivial value, even if any attempt to influence the verdict is expressly disavowed, and even if gifts of equal value are presented by both parties. See Rambam, Hilkhot Sanhedrin 23:1 and 23:5. Accordingly, rules Hatam Sofer, a bribe designed to assure acquittal in a criminal proceeding cannot be forbidden since

As has been shown earlier, non-Jews may be given instruction with regard to matters pertaining to the Noachide Code.⁴⁰See above, note 6. Rabbi Weinberg rules that lectures before a non-Jewish audience on matters of jurisprudence are unquestionably permissible since non-Jews are bound to fulfill the commandment of dinin, which is one of the Seven Noachide Commandments, and encompasses Torah laws relating to all matters pertaining to ownership of property and financial liability.⁴¹The specific nature of the miẓvah of dinin is the subject of controversy between Rambam and Ramban. Ramban, in his commentary on the Bible, Genesis 34:13, understands the commandment as a general obligation with regard to the establishment of laws and regulations governing commercial and interpersonal behavior essential to the maintenance of a social order, e.g., laws governing theft, fraud, prompt payment of wages, bailment, etc. Teshuvot Rema, no. 10 and Teshuvot Ḥatam Sofer, VI, no. 14, maintain that in these areas Jewish law is incorporated in the Noachide Code in all its details by virtue of the commandment concerning dinin. Rambam understands dinin as binding Noachides to punish transgressors for infractions of the first six Noachide commandments. Nevertheless, Ḥatam Sofer, basing himself upon Teshuvot Rema, avers that Rambam does not reject as binding upon Noachides the obligations recognized by Ramban under the rubric of dinin. Ḥatam Sofer maintains that, according to Rambam, all such matters are subsumed under the commandment banning theft. While Rabbi Weinberg’s reference to dinin is obviously a reference to Ramban’s position as understood by Teshuvot Rema and Teshuvot Ḥatam Sofer, it is also substantively reflective of Ḥatam Sofer’s understanding of Rambam’s position regarding the normative obligations of Noachides, although for Rambam such obligations flow from the prohibition against theft rather than from the miẓvah of dinin. It should, however, be noted that R. Naphtali Zevi Yehudah Berlin, Ha‘amek She’elah, She’ilta 2:3, understands Ramban to be of the opinion that, while non-Jews are commanded to establish a system of jurisprudence and tort liability, the detailed formulation of such a system is left to their discretion and need not reflect the provisions of Torah law which are binding upon Jews. This is also the position of R. Iser Zalman Meltzer, Even he-Azel, Hilkhot Malveh ve-Loveh 27:1.

Yet another theory explaining the principle dina de-malkhuta dina is advanced by Rashi in his commentary on Gittin 9b. The Mishnah declares that all civil instruments executed by non-Jewish courts are valid for purposes of Jewish law even though the attesting witnesses are gentiles. Included in that category are deeds to real property that serve to give legal effect to the transfer and which, ostensively, must be signed by competent Jewish witnesses to do so. Bills of divorce similarly executed are explicitly declared by the Mishnah to be invalid, presumably because of the absence of qualified attesting witnesses. Rashi endeavors to resolve the problem by indicating that, although gentiles are not subject to the provisions of biblical law concerning divorce, they are bound by the Noahide Code which includes a commandment concerning "dinin." Rambam, Hilkhot Melakhim 9:14, defines dinin as an obligation to enforce the other provisions of the Noahide Code by appointing judges and other law enforcement officials while Ramban, Commentary on the Bible, Genesis 34:13, defines "dinin" as commanding the establishment of an ordered system of jurisprudence for the governance of financial, commercial and interpersonal relationships.

Rabad disagrees with Rambam regarding the above case and states that the slave is to be sold to a non-Jew but is not to be executed. Rabbi Joseph Rosen, in his commentary on the Rambam, Ẓafnat Pa'aneaḥ, explains Rabad's position in the following manner: with the lapse of the Sanhedrin and the abrogation of capital punishment among Jews, Jews can no longer impose capital punishment upon non-Jews, even though the latter remain obligated to do so in administering their own system of law. Moreover, Ramban, in his commentary on Genesis 34:13, disagrees with Rambam and states that there is no statutory obligation requiring non-Jews to impose punishment upon transgressors. Imposition of capital punishment, he maintains, is discretionary under the Noachide Code. The injunction, "Thou shall not stand in fear of a man," does forbid a member of the Bet Din to refuse to sit in judgment; however this admonition applies only to instances when the defendant is a Jew. Since in Ramban's opinion a non-Jew, if he so desires, may decline to sit in judgment, it follows, according to this view, that Jewish courts have the same prerogative.