Komentarz do Powtórzonego Prawa 16:18

שפטים ושטרים JUDGES AND BAILIFFS — שופטים are the judges who pronounce sentence, and שוטרים are those who chastise the people at their (the judges’) order [beating and binding the recalcitrant] with a stick and a strap until he accepts the judge’s sentence (Sanhedrin 16b and Rashi thereon; cf. Sifrei Devarim 144:6).

JUDGES ‘V’SHOTRIM’ SHALT THOU MAKE THEE IN ALL THY GATES WHICH THE ETERNAL THY G-D GIVETH THEE. He has commanded in the Torah, the word of both parties shall come before ha’elohim (the judges);¹Exodus 22:8. Ha’elohim indicates that “the judges” had received ordination. and he shall pay as the judges determine.²Ibid., 21:22. If so, He commanded [by implication] that Israel is to have judges, and here he [Moses] explained that they are to appoint judges in all their cities when G-d will give them the Land. For outside of the Land they are not required to appoint a court for themselves; rather, when an aggrieved party complains, people qualified to judge are to arise for him and according to their ordinances shall they judge it.³Ezekiel 44:24. Or the parties are to go up to the Land in the proper time [i.e., when there are courts of ordained judges functioning in the Land of Israel],⁴Thus, when there are courts of ordained judges functioning in the Land of Israel, Jews living outside of the Land are not obligated to appoint judges, for, if there is some litigation between them they can appear before the judges in the Land. — On ordination, see further Note 8; also, Vol. II, p. 339, Note 20. and there, they will adjudicate it in the place of righteousness. He added here [that it is obligatory to appoint] shotrim, who are the ones that execute the judgment.
Accordingly, Israelites living outside of the Land are not commanded to appoint for themselves judges in the cities. And so wrote Harav Rabbi Moshe ben Maimon.⁵Mishneh Torah, Shoftim, Hilchoth Sanhedrin 1:2. But in Tractate Makkoth the Rabbis have taught:⁶Makkoth 7a. “And these things shall be for a statute of judgment unto you throughout your generations in all your dwellings.⁷Numbers 35:29. This teaches that the laws of Sanhedrin are binding both within and without the Land. If so, why is it stated Judges and officers shalt thou make thee in all thy gates? In the Land you are to appoint [judges] in every district and in every city; outside the Land you are to appoint [judges] in every district, but you are not obligated to do so in every city.” From this text it would appear that we are required to appoint a Sanhedrin outside the Land — not in every city as in the Land of Israel, but in every district. If so, this commandment is binding at all times in civil cases and in matters that may be adjudicated outside the Land. Nowadays, however, that ordination has ceased,⁸Ordination was the process of investiture with judicial rights and functions which had continued in an unbroken chain from Moses our teacher. Since ordination was valid only if both the ordainers and the ordained were in the Land of Israel, this process of investiture ceased to exist sometime in the middle of the fourth century [Common Era] because the severe Roman persecutions of the Jews in the Land of Israel forced them to migrate to Babylon and elsewhere. According to Rambam, if all Sages in the Land of Israel would agree to reinstitute ordination, they are empowered to do so (Mishneh Torah, Shoftim, Hilchoth Sanhedrin 4:11). Such an attempt was made by Rabbi Yaakov Beirav of Safed in the middle of the sixteenth century in the days of Rabbi Yoseph Karo, author of the Shulchan Aruch. The attempt failed for various reasons, one of them being that Rambam concluded his statement with the equivocal phrase “and the matter needs yet a final decision.” since, according to Torah-law, all judicial functions are void — for it is written, “[And these are the ordinances which thou shalt set] before them,⁹Exodus 21:1. and not before commoners ”¹⁰Gittin 88b. and we [not being ordained,] are commoners, and would not be empowered to adjudicate outside the Land except for the Rabbinical ordinance that we “carry out the commission of the former ones [who had received ordination]”¹¹By this principle judges are empowered nowadays to adjudicate matters which are common occurrences and involve monetary losses, such as loans, Kethubah (marriage contract), inheritance, damages, etc. But matters not of common occurrence [such as one animal damaging another] or not involving a monetary loss [such as the additional amount levied as a fine upon returning stolen goods] are not enforceable. See Choshen Mishpat, I, for further clarification of this principle. — we are not at all bound, according to Torah-law, by the commandment to appoint judges.

שופטים ושוטרים, after Moses had addressed a number of commandments to the people at large, he now turned to instruct the leaders of the people in commandments of special concern for them. By paying especial attention to observing these laws, the leaders, especially the judges, kings and prophets, would be able to maintain the spiritual level of the people at large, and thus ensure the people’s continued tenure of the Land of Israel. In the words of the prophet: “when the lion roars who does not tremble?” (Amos 3,8) Tzefaniah phrased it somewhat differently, providing degrees of reactions to people in varying degrees of authority. (Tzefaniah 3,3 describes the princes, leading authorities as being feared like roaring lions, whereas the judges who have no executive powers are feared in the manner one is afraid of wolves.)

שופטים ושוטרים, "Judges and law enforcers, etc." The Torah positions this commandment adjacent to the commandment to make a pilgrimage to the Holy Temple three times a year to teach us that although there is a Supreme Court in Jerusalem situated at the entrance to the Temple precincts, we must not merely rely on that court but must appoint a nation-wide judiciary. The reason is that judgment should not be delayed until the time of the respective pilgrimages.

ושוטרים, the judges issue orders to the enforcers (Shotrim) to see that recalcitrant convicted persons will obey the judgments handed down by the judges.

שופטים ושוטרים, “Judges and enforcement officers,” Moses appended this portion immediately after that dealing with the festivals involving pilgrimage to Jerusalem, to tell us that although he commanded us to make the pilgrimages to the place where the priests perform their service and you have an opportunity to consult with them on any matter that is of concern to you, be it of a legal or ritual nature, this is not sufficient, and you must appoint the appropriate mechanism in every city, i.e. judges and enforcement officers. Nachmanides writes that actually, already in Exodus 21,6 and 22,7 the Torah clearly presumed the existence of a judiciary, i.e. אלהים, as well as פלילים; the addition here is the command to appoint enforcers of the judgments handed down. Here we also learn that such institutions must be established in all towns in the land of Israel. When someone feels that he has been wronged, it is up to him to cry out, i.e. to demand that the judges meet to hear his complaint. (Compare Ezekiel 44,24) According to what is written here, Jewish communities in the Diaspora do not require permanent courts, etc., but these are convened on an ad hoc basis. This is also the view of Maimonides (hilchot Sanhedrin 1,2).

By administering corporal punishment with cudgels, etc. [Rashi specially defines this word] because we find שוטרים [applied also] to those who are appointed in battle as [in the verse], “The officers (שוטרים) will address” (below 20:5) which Onkelos translates as סרכיא (officers) will address.

V. 18. שופטים וגו׳. Die bisherigen Gesetze gruppierten sich um den gemeinsamen Gedanken der zentralisierenden Anziehungskraft, welche die von Gott erwählte Stätte seines Gesetzesheiligtums auf die in das Land hin verteilten Söhne seines Volkes zu üben bestimmt ist. Die folgenden Gesetze sind nun Institutionen gewidmet, vermittelst derer von diesem Zentralpunkte aus Vertreter dieses Gesetzes durchs ganze Land hin bestellt werden und damit die Wirksamkeit dieses Gesetzesheiligtums in jeder Heimatsstätte des Volkes ihre Sicherung findet. שופטים ושוטרים (siehe Schmot. 5, 6). Wie dort bemerkt, sind שוטרים Exekutivbeamte, welche die Ausführung eines Urteils oder einer Verfügung überwachen und eventuell bewirken. Dort waren es die, welche nach den Bestimmungen der נוגשים das Volk zur Arbeit antreiben sollten.

שופטים ושוטרים, “Judges and officials to execute the judgments;” shoftim are the judges who do the legal work, shotrim are the officials who see to it that the judgments handed down are executed. (Compare Talmud, tractate Sanhedrin folio 16). In Samuel II 8,15-16 we find a practical illustration of this system when the prophet records: “David ruled over all Israel, and David executed true justice among all his people. Yoav, son of Zeruiah was commander of the army;” the paragraph lists additional civil servants and their respective assignments.” The reason why these details are recorded there is to show that there were separate departments for the legal problems and for executing judgments once they had been formulated.

שופטים ושוטרים תתן לך בכל שעריך, “Judges and policemen shall you provide for yourselves in all your gates;” this paragraph has been inserted in the Torah at this point in order to tell you that although you are obligated to travel to the place where the priests and Levites reside all year three times a year and you can submit all your legal problems to them on those occasions, this is not sufficient, but you must have judges and enforcers in all your towns (Ibn Ezra)

בכל שעריך IN ALL THY GATES — i.e. in each town (Sifrei Devarim 144:3).

Judges and officers. The explanation is that this verse is a command to those who have the authority and power to appoint judges, that they should appoint them in order that they will judge. The judges should not show favoritism even to those who appointed them. This is the meaning of the phrase, “appoint for yourself,” as if to say, “over yourself”. It follows a fortiori that the judges should judge all the people justly.

נותן לך לשבטיך, in the gates (cities) He is about to give to you. You are to divide the judges to districts, i.e. each of your cities must have a judiciary. This restriction does not apply to land conquered outside the traditional boundaries of Israel; there, seeing the land was not divided into tribal parcels, the judiciary appointed also did not have to adhere to this pattern. Examples of such regions were Syria, etc.

לשבטיך, “according to your tribes.” Rashi explains this to mean that every tribe must establish such courts in each of its cities. This means that a city populated by members of different tribes has to establish at least two separate courts. Nachmanides writes that it is possible to understand our verse to mean that there should be a tribal high court for each tribe. The members of that high court, as one of their tasks, have to oversee the appointment of lower courts in each city under their authority. Litigants are not free to choose a court other than that in the city where they live. This applies even if two litigants resident in the same city agree to take their case to a court in another city, this is also forbidden. The local court can force any litigant belonging to that tribe to appear before it, even if the litigants themselves prefer to appear before that tribe’s supreme court instead. The tribal high court, however, can demand that certain litigants have their case dealt with by that court (instead of the local court). If the need arises to rectify some impropriety or deficiency in the tribal courts’ set up, the problem must be dealt with by the Sanhedrin, the Supreme Court. Details about the functions of this Supreme Court are discussed in tractate Horyot. The local courts are obligated to operate on the basis of the instructions they receive from the Supreme Court. The plain meaning of our verse is “you have to appoint judges that are members of your respective tribes, so that members of a certain tribe will be judged by judges belonging to that tribe, in the various cities.”

In each and every city. Rashi is answering the question: If one has to appoint judges in each and every gate [of every house], if so who will they judge? They would all be judges! He answers, “In each and every city.”

The reason why the Torah demands the appointments of law-enforcement officers is explained in Pessikta by Rabbi Eleazar ben Shamua who says once you have law enforcers you will have effective judges; if there are no law-enforcers the law to appoint judges is not operative. Whenever the Israelites realise that the common people ignore the rulings of the judges, and the judges in turn are unable to enforce their decisions there is no point in making such decisions. On the other hand, when the common people accept law-enforcement the law to appoint judges is applicable.

THROUGHOUT THY TRIBES. “This refers to the expression [at the beginning of the verse] shalt thou make thee. This teaches that courts are to be set up in each and every tribe, and in each and every city.” This is Rashi’s language, and so it is also stated in Tractate Sanhedrin.¹²Sanhedrin 16b. But I know not the meaning of this text, for, since we have appointed courts in each and every city, there are many courts in every tribe [thus making it redundant to specify “throughout thy tribes”]! Perhaps the intent of the verse is to state that if there is a city belonging to two tribes, such as Jerusalem in which there is a share for [the tribe of] Judah and [for the tribe of] Benjamin,¹³See Ramban further 33:12. that we are to seat two courts therein. And so the Rabbis concluded in Chapter Cheilek¹⁴“Portion” — “All Israelites have a portion in the World to Come.” — Sanhedrin 111b. that they may divide one city among two tribes, and so, indeed, was Jerusalem shared by Judah and Benjamin.
And it is possible to explain that Scripture obligated [the nation] to appoint a court [exercising authority] over the whole tribe and it is to judge all [its people], and then we are to appoint a court for each and every city that is to judge that [particular] city. Now, although all these courts were alike in number of judges, consisting of twenty-three in criminal cases and three in civil cases, [people] most superior in wisdom among them were appointed over the whole tribe, while those inferior to them [were designated for the courts] of each and every city. Parties to a suit could force one another to adjudicate only before the court in their city, not before the court of another city. Even if both parties happened to be in another city one could still say, “Let us go before the court of our own city.” But the [supreme] court of the tribe could force any of the people of that tribe to stand trial before it. And even if the litigants are in their own city one can still say, “I want to go to the Great Court of the tribe.” Similarly, if the courts of the cities are in doubt [concerning the law], they are to come before the Great Court of the tribe and request [its decision]. Thus just as a Great Sanhedrin [of seventy-one judges] was appointed over all courts of all Israel, so one [supreme] court was to be appointed over each and every tribe. And if [the judges of that court] found it necessary to ordain or decree any matter for their own tribe, they were empowered to so decree and ordain and, to that tribe, their word was equivalent to the decree of the Great Sanhedrin over all Israel.¹⁵This corroborates what Ramban has written on the affair of Gibeah (see Vol. I, p. 253): The obligation of making “the fence” lay upon the tribe of Benjamin etc. This is “the court” mentioned in Tractate Horayoth wherein we are taught, “If the court of one of the tribes rendered a decision [that was unwittingly contrary to a negative commandment, punishable by excision] and that tribe acted according to their word, that tribe is obligated [to bring the prescribed offering], but the rest of the tribes are not liable.”¹⁶Horayoth 5a. See Leviticus 4:13-21 for the particular sin-offering. — It should be noted that this, however, is the opinion only of Rabbi Yehudah. The Sages say that the special sin-offering for the erroneous decision of a court applies only to the Great Sanhedrin of all Israel. Ramban’s intent in citing this part of the Mishnah was only to indicate that the Great Court of a tribe is mentioned in the Mishnah.
And by way of the plain meaning of Scripture the sense of the verse is [to be inverted as follows]: “Judges and officers shalt thou make thee throughout all thy tribes in all thy gates,” the verse stating that they are to appoint judges over their tribes, and they are to judge in all their gates. Thus the judges of the tribe are to judge in all its cities.

:תתן לך der Angeredete ist die nationale Gesamtheit, die bereits ihre Repräsentanz in dem einundsiebziger Kollegium (Bamidbar 11, 16) hatte, und diese soll "sich", also als ihre Delegierte, שופטים ושוטרים in allen Städten des Landes בכל שעריך bestellen, die aber selbst nach der Verteilung noch "שעריך": unmittelbar der Gesamtheit zuständig bleiben, אשר ד׳ א׳ נתן לך לשבטיך und in Zwischenunterordnung einer Stammeseinheit angehören. Es ergibt dies die Anordnung einer aus Richter und Exekutive bestehenden Gerichtsbarkeit an der Spitze der Gesamtnation, בית דין הגדול ,סנהדרין גדולה של שבעים ואחד, und von ihr aus eine aus Richter und Exekutive bestehende Gerichtsbarkeit an der Spitze eines jeden Stammes und in jeder Stadt. Daher (Sanhedrin 16 b): מניין שמעמידין שופטים לישראל ת׳׳ל שופטים תתן שוטרים לישראל מניין ת׳׳ל שוטרים תתן שופטים לכל שבט ושבט מניין ת׳׳ל שופטים לשבטיך שוטרים לכל שבט ושבט מניין ת׳׳ל שוטרים לשבטיך שופטים לכל עיר ועיר מניין ת׳׳ל שופטים לשעריך שוטרים לכל עיר ועיר מניין ת׳׳ל שוטרים לשעריך. Was hier שבט heißt, ist wohl dasselbe, was (Mackot 7 a) wahrscheinlich, nachdem zur Zeit des zweiten Tempels die Verteilung nach Stämmen alteriert war: פלך Kreis genannt wird (vergl. ל׳׳מ zu הל׳ סנהדרין l, 1). Die Beziehung der Stammes- resp. Kreisgerichte zu den Ortsgerichten ist nicht ganz klar. Nach רמ׳׳בן z. St. wäre diese Beziehung ein Kompetenzverhältnis gewesen und hätte sich das ב׳׳ד של כל שבט zum Stamme wie ב׳׳ד הגדול zu כל ישראל verhalten. Faktisch gab es einen höchsten Gerichtshof סנהדרין גדולה von einundsiebzig in der לשכת הגזית des Tempelvorraums, עזרה, ein סנהדרין קטנה von dreiundzwanzig im Eingang der עזרה und im Eingang des Tempelberges הר הבית, ein solches סנהדרין קטנה von dreiundzwanzig in jeder größeren Stadt, in jeder kleineren aber ein Gericht von dreien, ב׳׳ד של שלשה (Sanhedrin 2 b).

לשבטיך THROUGHOUT THY TRIBES — This is to be connected with תתן לך, thus: judges and bailiffs shall you make yourself for your tribes in all all your cities that the Lord, your God, gives you.

משפט צדק, the manner in which the complaints of the litigants were heard should be such that the resulting decisions could be expected to be fair, צדק, righteous. The judges were not to discriminate in their treatment of either of the opposing litigants.

This continues from “You shall appoint for yourself.” Judges, etc. Because you cannot say that it [“for your tribes”] is connected with [the] adjacent [term] “giving you,” because once it says “that Adonoy, your God, is giving you,” the term “for your tribes” is included in the word “you.” [Therefore Rashi explains]: “This continues etc,” and it is as if the verse had written “and in [all] your gates,” and the וי"ו is missing from בכל שעריך. Rashi further explains that if so, why write both terms, “in your gate” and, “for your tribes”? And he explains, “This teaches that judges are to be seated, etc.”

תתן לך, "you shall give (appoint) for yourself;" This is an appeal to the people who appoint the judges and enforcers not to think that seeing they have appointed them they are themselves not subject to their authority. The meaning of לך then is equivalent to עליך, "over yourself."

In all of your cities. The court for each tribe was appointed first, and was more important. However in this verse the court of each city is mentioned first because that is where most judgment occurs. The court of the tribe has greater authority in that they can force litigants to appear before them, as Ramban explains, and if the city court is in doubt they come to ask the court of the tribe.

ספרי) בעל כרחם .ושפטו את העם), als Delegierte der Gesamtheitsrepräsentanz erhalten sie die Befugnis beim Kriminalprozess auf Grund von Zeugen, beim Zivilprozess auf Grund einer Klage den Angeklagten vor ihr Forum zu zitieren und nötigenfalls dessen Erscheinen zu erzwingen. ספרי) זה מינוי חדיינין :משפט צדק) und ebenso ferner: שלא תאמר איש פלוני נאה איש פלוני קרובי :לא תטה משפט, und ausführlicher zu Kap. 1, 17: לא תכירו פנים במשפט זה הממונה להושיב דיינים שמא תאמר איש פלוני נאה אושיבנו דיין איש פלוני גבור אושיבנו דיין איש פלוני הלווני אושיבנו דיין איש פלוני יודע בכל לשון אושיבנו דיין נמצית מזכה את החייב ומחייב את הזכאי לא מפני שהוא רשע אלא מפני שאין יודע מעלה עליו כאלו הכיר פנים בדין. Nach dieser Auffassung sprächen unsere Sätze nicht sowohl von den Pflichten des Richters, als vielmehr von der Pflicht der mit Bestellung der Gerichte betrauten Gesamtautorität, solche Männer zu Richtern zu bestellen, dass durch sie nur das Recht, das ungebeugte Recht zum Ausspruch gelange, und sich bei solcher Bestellung nächst der Rechtschaffenheit des Charakters nur von der erforderlichen Rechtskunde und Rechtseinsicht leiten zu lassen. Eine Forderung, die durch keinerlei sonstigen persönlichen, sozialen und wissenschaftlichen Eigenschaften ersetzt werden kann. Es bietet aber ganz besonders unsere Stelle eine Berechtigung zu dieser Auffassung, da hier ja ganz eigentlich die Einsetzung von Gerichten im ganzen Lande der nationalen Gesamtheit zur Pflicht gemacht wird. Demgemäß wäre ׳ושפטו וגו eine Zweckbestimmung des vorangehenden Gebotes: שופטים ושטרים וגו׳. Die nationale Gesamtheitsrepräsentanz soll im ganzen Lande Richter und deren Exekutivbeamte, und zwar in solcher Weise bestellen, dass durch sie das Recht und nur das Recht zu Ausspruch und Geltung komme. Die folgenden, ebenfalls an die nationale Gesamtheitsrepräsentanz gerichteten Warnungen: לא תטה משפט usw. machten eben diese Gesamtheitsvertretung für jede im Lande vorkommende Rechtsbeugung, Parteilichkeit und Bestechlichkeit verantwortlich, wenn die Gesamtheit und ihre Vertreter durch Bestellung ungeeigneter Männer zu Richtern solche Gerichtsvergehen verschuldet. Die von ungeeigneten Richtern verübte Rechtsbeugung etc. etc. fällt auf die zurück, die sie zu Richtern bestellt. Also: לא תטה משפט, du sollst durch die von dir bestellten Richter das Recht nicht beugen usw.

לשבטיך THROUGHOUT THY TRIBES — This teaches that judges must be appointed for each tribe separately and each city separately (Sifrei Devarim 144:4; Sanhedrin 16b).

This teaches that judges are to be seated for each and every tribe, etc. I.e. “for your tribes” teaches that if [the territory of] two tribes was located in one town, one needs judges for each tribe. “And in all your gates” teaches that if two towns [are located in the territory] of one tribe, one needs [to seat] judges in each town. You may ask, even if it [לשבטיך] were not connected to תתן לך (“appoint for yourself”), one could still explain the same way; because it is written נותן לך לשבטיך (“giving you for your tribes”), לשבטיך is connected to the adjacent לך [and the verse means that לך means לשבטיך]? The answer is that regarding the לך written next to נותן, once the Torah writes there, “אשר ה' אלקיך נותן לך (that Adonoy, your God, is giving you)”, this includes all your tribes [and if so] the original question returns, why does one need [the word] לשבטיך (for your tribes)? But [when the Torah writes ]תתן לך (“you shall appoint”), it is as if it wrote תתן לשבטיך (you shall appoint for your tribes), and the word לך written in the verse is similar to [the לך] of “לך לך (Go from your land) (Breishis 12:1),” and like “עשה לך (make) (Ibid 6:14),” where (לך is) a grammatical formality [and does not really imply anything]. The same also applies here. But regarding לך written next to נותן, the word לך refers to the entire Jewish people and is not a grammatical formality; rather, it is an explanation of נותן. Because it is written, “That Adonoy your God is giving,” and to whom is He giving? To “you,” and it is explaining that this [you] is the Jewish people. Because one cannot say that “He is giving to your tribes” [because] was the land given to the tribes [and not to individuals]? But regarding תתן לך, once לשבטך is connected with תתן we no longer need the explanation of [the word לך] and perforce it is a grammatical formality.

בכל שעריך, "in all your cities." The reason the Torah writes כל, "all," is to tell us that every single city and town in the land of Israel must have its own judiciary. Yalkut Shimoni on our verse states that our verse draws a comparison between the Supreme Court and the regional courts; just as the Supreme Court has the authority to deal with capital offences and to hand down death sentences so do the regional courts [if composed of a minimum of 23 judges. Ed.] The exegesis appears to be based on the word בכל which includes all the various סנהדרין as having the same authority.

ושפטו את העם וגו׳ AND THEY SHALL JUDGE THE PEOPLE [WITH JUST JUDGMENT] — This means, appoint judges who are expert and righteous to give just judgment (cf. Sifrei Devarim 144:7).

Appoint competent, righteous judges, etc. Rashi is answering the question: Scripture should have said, “And you shall judge the people righteous justice” as a direct command, just as afterwards it writes as a direct command, “Do not pervert justice,” “Do not show favoritism,” “Do not accept bribery.” And he answers, “Appoint, etc.” I.e. “Judges and police officers you shall appoint for yourself, etc.,” and what sort of judges should you appoint? The verse explains, “Who will judge the people righteous justice.” I.e. this is a command to Yisroel that they should appoint judges who know how to judge righteously, that they must be expert and righteous.

אשר ה׳ אלוקיך נתן לך, "which the Lord your G'd is about to give to you, etc." We are taught in Makkot 7 that the legal requirement to establish such a judiciary applies only to the towns within the land of Israel.

תתן לך, “you shall appoint for yourself.” Seeing that Moses had risked his life in order that justice be performed on earth, the Torah associates the establishment of a judiciary with Moses personally, i.e. לך (Tanchuma Beshalach 10). He had killed the Egyptian who had slain a Hebrew man in Exodus 2,11-12. On another occasion Moses risked his life for the Torah and the Jewish people when he spent 40 days on the mountain trying to get forgiveness for the people and linking his survival on earth to the people being forgiven (Exodus 34,28; 32,32.). As a result of these various acts of selfless devotion the prophet Zecharyah speaks of remembering the Torah of “My servant Moses” (Maleachi 3,22) and G’d describes the Jewish people as Moses’ people in Exodus 32,7 when He said to Moses: “your people have become corrupt.” Here the judges also are described as belonging to Moses, hence the wording תתן לך, “appoint for yourself.”

ושפטו את העם משפט צדק, “they shall judge the people with fair judgment.” This may be either a warning to the individual judge or to every individual Israelite not to appoint a judge who is not righteous as well as competent. If they fail to do so each Israelite will be an accessory to perversion of justice if and when it occurs.” The judgment is to be absolute. It is to correspond to Leviticus 15,15 בצדק תשפוט עמיתך, “you are to judge your fellow with righteousness.” Sanhedrin 6,2 phrased this as יקוב הדין את ההר, “let the judgment bore a hole into the mountain.” Rabbi Akiva adds that one does not mix mercy with justice (Ketuvot 84). [The aforementioned quotes mean that the time for possible arbitration is before a matter comes to court; once it has come to court only legal considerations are relevant. Ed.]. The wordמשפט implies something “in the middle,” i.e. a clear-cut decision between opposing claims. Compare Psalms 112,5: ”he conducts his affairs with equity.” Jeremiah 30,11 speaks of ויסרתיך במשפט, “He will discipline you with justice.” These applications of strict yardsticks are valid in the dispensation of justice by a human tribunal.
The expression צדק which also appears in our verses is reserved for application by G’d. G’d combines both attributes when He sits in judgment. This is why we find David say in Psalms 99,4: משפט וצדקה ביעקב אתה עשית, “justice and charity You applied in judging Yaakov.” משפט is known in kabbalistic terms as the קו האמצעי the “middle” line on the diagram of the emanations, and Yaakov is the patriarch who represents this line [to the left of חסד on the right, Avraham’s attribute, and to the right of גבורה ,דין Yitzchak’s attribute. Ed.].
This enables us to understand Jeremiah 10,24: יסרני ה' אך במשפט, אל באפך פן תמיעטני, “chastise me o Lord, but in measure; not in Your wrath, lest You reduce me to naught.” The prophet says that the attribute of Justice which is part even of the tetragrammaton should not be applied to him as otherwise he would not survive the chastisement. [The prophet utters a prayer by his people who are aware that the enemy army is close to capturing Jerusalem. Ed]. משפט as distinct from דין, is perceived as the mild aspect of justice at work, whereas אפך is the harsh aspect of justice at work. Tzedek is the attribute of Justice applied to the world, as we know from Psalms 9,9 והוא ישפוט תבל בצדק, “and He will judge the universe by employing צדק.” This attribute receives its input from a higher source known as elohim. This is the meaning of Psalms 58,12 אך יש אלו-הים שופטים בארץ, “there is indeed divine justice on earth.” The word שופטים in that verse in Psalms and the word שופטים in our verse here are mystically linked together. The Torah’s instructions here are to establish the mechanism demonstrating that there is divine justice on earth. If it sounds as if justice is to be tempered with mercy in a court of law, this is misleading. The truth is if the guilty receives sentence the innocent is exonerated and feels that righteousness has been done for him whereas justice has been done to the other litigant.

לשבטיך, "for your tribes, etc." According to Sifri these words belong to the previous words, i.e. שופטים לשבטיך, "judges for your tribes." If that is so, why did the Torah not simply write תתן לך לשבטיך בכל שעריך, "you shall appoint for your tribes in all your towns, etc.? Perhaps the Torah wanted to ensure that the word לשבטיך appears next to the words ושפטו את העם משפט צדק, "and they will then be able to judge the people with righteousness." In this way the Torah provides the rationale for the legislation. If a city is inhabited by people of more than one tribe it requires two courts in order to satisfy the Torah's demand for fair judgment, משפט צדק. The Torah was careful to write את העם, to instruct us that two courts should not apply different yardsticks but that the whole people must be judged according to a uniform system of laws. [The author may mean that although Israel is comprised of 12 tribes this does not mean that there are twelve states each having its own set of laws, as in many countries where there is both Federal and state law or Federal and provincial law. Ed.] This helps us understand why the Torah writes ושפטו in the third person instead of ותשפטו in direct speech just as the words תתן לך, or when the Torah continues לא תכיר פנים addressing the judges directly. Rashi explains that the words את העם are an instruction that the judges must both be experts in their field and that they must be known to be righteous. [Rashi also quotes the Sifri. My edition has neither the last statement nor the one which says that the same law must be applied equally in all cities regardless of which tribe. Ed.] The various statements prove that when there are no law enforcers there is no rationale for having judges. As a result of such considerations we may equate שופטים with שוטרים. Seeing that their functions depend on one another so do their titles. Rashi also explains that we have here a warning to those who do the appointing to appoint only righteous people. I believe that if that were so, the Torah should have written: שופטים ששופטים בצדק תתן לך. "Judges who judge fairly you must appoint." According to our approach the present wording of the paragraph makes perfect sense.

I have seen in Maimonides' treatise Hilchot Sanhedrin chapter one that he ignores the ruling that each tribe must have its own judiciary. He refers only to each city having to have its own court, etc. Perhaps Maimonides understood the comment of our sages who said that each tribe must have its own Sanhedrin as applying only as long as each city did not have its own judiciary. Once each city had its own court and law-enforcers there would be no more need for a tribal court. The wording of the Baraitha in Sanhedrin 16 is as follows: "whence do we know that we must appoint judges in Israel? The Torah wrote "You shall give (appoint) judges." How do we know this rule applies to each tribe individually? The Torah wrote: "Judges for your tribes." How do we know that you have to appoint law-enforcers correspondingly? The Torah wrote: "you shall appoint law-enforcers." How do we know that we must appoint them in each city? The Torah wrote "Judges for your cities." Thus far the Baraitha. The difficulty here is why the author of this Baraitha interpreted the words: "for your tribes" which appear in the text at the end of the sequence before he interpreted the words: "in all your cities" which occur earlier in that same verse? The reason may be that the obligation to appoint a judiciary for the tribe is applicable only as long as no judiciaries had been appointed for each city. This would account for the fact that Maimonides did not mention this law at all, as he described a situation when there was no longer any need for this temporay legislation. The Baraitha viewed the Torah's verse as saying: "You have to install a judiciary in every tribe regardless if it comprises 10 cities or only a single city.. In the event that the tribe comprises numerous cities you have to have courts and enforcement officers in every single city."

You may ask that if every city has to have its own judiciary, why does the Torah speak about a judiciary for the tribes altogether? The answer is that if the Torah had not mentioned "your tribes," I would not have interpreted the words בכל שעריך, to mean "in each one of your cities," but as referring both to your cities on the West Bank and your cities on the East Bank of the Jordan. Once the Torah wrote the words: "for your tribes," it became clear that the words: "in all your gates" must refer to individual cities. This is why once Maimonides ruled that every city has to have its own judiciary he did not need to mention the subject of tribes at all. His ruling is analogous to the Baraitha in Sanhedrin we have quoted that if a city is shared by two different tribes that city must have two courts.

משפט צדק. "righteous judgment." The Torah did not write בצדק as it did in Leviticus 19,15 where it legislated something similar. In our verse -which is addressed to the judges- the Torah teaches the judges something of great importance. If the judge is truly interested in handing down true judgment, he must dissociate himself from the persons, i.e. the litigants before him and weigh only legal considerations. He must not say to himself that according to the arguments of litigant A, B must be guilty, whereas according to the arguments of litigant B, A must be guilty. He must research only the halachah on the subject matter in dispute. If he were to approach the matter differently he could not help but develop some bias in favour of one of the litigants. As a result the judgment would not reflect true righteousness, צדק. When the judge follows the procedure the Torah suggests then he first forms judgment, משפט, which turns out to be צדק, righteousness. [You will observe that in the quotation from Leviticus 19,15 the Torah describes the reverse sequence, i.e. your interest in righteousness obliges you to pronounce judgment. In that instance a variety of considerations ultimately demanded that you resort to law rather than mediation, etc. Ed.]

If we are to read the verse as a moral/ethical lesson we could apply a teaching based on what Moses said in Psalms 96,13: ישפט תבל בצדק, "He judges the universe with equity." Kabbalists (Zohar volume 3 page 198) understand the word צדק in this verse as referring to the Celestial Court. According to Beytzah 16 this court decides on Rosh Hashanah each individual's livelihood for the coming year. Accordingly, if a terrestrial judge decides between two litigants on the basis of Torah law he merely publicises a decision already made in the Celestial Court, as any decision not based on Torah law would upset the judgment made by the Celestial Court concerning this individual's livelihood. The words ושפטו את העם משפט צדק mean that these judges hand down to the people the decisions made by the Heavenly Tribunal.