Halakhah sobre Deuteronômio 1:47

There is yet another passsage in Sifre which may be cited in support of the position that women are barred from holding public office. This argument was formulated by Rabbi Ritter of Rotterdam in the 12 Kislev 5680 issue of Maḥazikei ha-Dat.¹⁰See also another article by Rabbi Ritter, “Das Frauenwahlrecht nach der Halacha,” Jeschurun, VI, no. 9-10, Elul-Tishri 5679. Deuteronomy 1:12 records that Moses addressed the community of Israel and declared, "Get for yourselves men, wise, understanding and known to your tribes and I will place them over you." Sifre, puzzled by the seemingly superfluous term "anashim—men," queries, "Would you then have thought women?" and proceeds to interpret the term "anashim" as connoting individuals possessing exemplary qualities. While this exegetical comment recorded in Sifre certainly does not, in itself, serve to establish a halakhic prohibition against appointment of women to positions of communal leadership, Rabbi Ritter argues that the incredulity expressed by the Sages reflects the fact that such a prohibition was known to exist on the basis of some other source. However, in context, the comment of Sifre does not bear out Rabbi Ritter's contention. Moses' quest was not simply for persons to fill positions of communal leadership, but for judges to share the burden of judicial duties. Women are barred from serving as judges¹¹See Ḥoshen Mishpat 7:4. but their exclusion from the ecclesiastic judiciary is based upon technical grounds not at all relevant to the question of whether or not they may occupy other communal offices. Since women are barred from serving as judges, Sifre, quite understandably, points out that the term "anashim" is superfluous. There is no reason to assume that Sifre would have expressed the same incredulity with regard to their suggestion of the appointment of women to other offices. Accordingly, no proof may be adduced from this source in establishing a prohibition against women occupying other positions of formal communal leadership.¹²Cf., Mishpetei Uzi’el, Ḥoshen Mishpat, no. 64, sec. 2.

In my opinion this is a positive commandment. [God] commands them to dwell in the Land and to inherit it for He has given it to them and [commands them] not to disdain the inheritance of God. And should it occur to them to go and to conquer the land of Shinar or the land of Assyria or any other [country] and settle therein they would [thereby] transgress the commandment of God … this verse constitutes a positive commandment and [God] reiterates this commandment in many places, [e.g.] "Go and inherit the Land" (Deut. 1:8).

There is, however, one early source that appears to contradict this conclusion, at least insofar as observance of Shabbat is concerned. Midrash Rabbah, Deuteronomy 1:18, states:

The commandment "You shall not be afraid of the face of any man" (Deuteronomy 1:17) constitutes a charge to judges trying a case not to recuse themselves because they are in fear of the litigants. This exhortation is amplified in the Sifrei, ad locum, with the comment, "Lest you say, 'I am afraid of so and so lest he kill my son or lest he ignite my stack [of corn].'" The injunction cautioning the judge not to be influenced by the possible loss of his harvest is readily understandable. Administration of justice must be made to take precedence over pecuniary loss. The prohibition against withdrawal in face of mortal danger is less comprehensible. The general halakhic principle is that all prohibitions are set aside in face of danger to life. Consistent with that principle, it would follow that a judge who feels intimidated should be permitted to withdraw from the case in order to prevent danger to himself or to others. Some latter-day authorities do indeed believe that conclusion to be correct and offer rather tenuous interpretations of the comments of Sifrei.⁵See R. Jacob Reischer, Teshuvot Shevut Ya‘akov, I, no. 143; R. Moses Schick, Teshuvot Maharam Shik, Oraḥ Ḥayyim, no. 303; idem, Maharam Shik al Taryag Miẓvot, no. 416; and R. Abraham I. Kook, Mishpat Kohen, no. 143. Cf. sources cited in Koveẓ ha-Poskim, Ḥoshen Mishpat 12:1. See also this writer’s comments regarding the views of those authorities, Contemporary Halakhic Problems, II (New York, 1983), pp. 134–138.

A similar distinction may be inferred from the comments of Me'iri, Sanhedrin 59a. Me'iri states that a non-Jew may study Torah if he does indeed intend to fulfill the precepts which he studies, but is deserving of punishment if he studies solely in order to acquire knowledge of "our Torah and our Talmud." Me'iri's inclusion of the phrase "our Talmud" would indicate that it is only the study of the Oral Law which is objectionable.¹⁶See Bet ha-Beḥirah al Masekhet Sanhedrin, ed. Abraham Sofer (Jerusalem, 5731), p. 229, n. 3. However, R. Ovadiah Yosef, Yabi‘a Omer, II, Yoreh De‘ah, no. 17, understands Me’iri’s phrase “our Torah” as including the Written Law. Again, in his commentary on Haggigah 13a, Me'iri speaks of "secrets of the Torah" which may not be imparted to non-Jews. It may be inferred that the Written Law, which is readily accessible to all, may be taught to a non-Jew. Among later authorities, Rabbi Naphtali Zevi Yehudah Berlin, Meshiv Davar, II, no. 77,¹⁷See also R. Naphtali Zevi Yehudah Berlin’s commentary on the Bible, Ha‘amek Davar, Harḥev Davar, Leviticus 18:15. rules that one may teach the Written Law to non-Jews as do Rabbi Judah Asad, Teshuvot Maharya, Yoreh De'ah, no. 135 and the son of this author in a gloss appended to Teshuvot Maharya, Oraḥ Hayyim, no. 4. Meshiv Davar points to the fact that "God commanded Joshua to translate the Pentateuch into seventy languages," presumably for the edification of non-Jews.¹⁸In response to Meshiv Davar’s argument, Divrei Yissakhar, Yoreh De‘ah, no. 96, states that only the content of the seven Noachide commandments were made available for non-Jews. There is, however, no hint of this distinction in the talmudic discussion recorded in Sotah 35b. See also Rashi, Deuteronomy 1:5, who interprets that passage as meaning that Moses expounded the Torah in seventy languages, presumably for the edification of the seventy gentile nations. See, however, Arugat ha-Bosem, Oraḥ Ḥayyim, no. 213, who opines that Moses’ exposition was for the benefit of Jews only and that he taught Torah in seventy languages in anticipation of the exile of Israel and the dispersal of Jews among the seventy nations. Cf., also Magen Avraham, Oraḥ Ḥayyim 334:17. See also R. Abraham I. Kook, Iggerot ha-Re’iyah (Jerusalem, 5722), I, no. 90, sec. 5, who declares that no normative halakhah can be derived from this narrative since the divine command was limited to a particular incident and occurred in conjunction with the exodus from Egypt and the revelation at Mount Sinai. During this unprecedented and unparalleled historical epoch the Divine Presence was perceived in some manner even by the gentile nations. A similar distinction is made by numerous other authorities including Sefer ha-Mezaref, no. 97; Rabbi Jonathan Eibeschutz, Ahavat Yonatan, Parshat Beshalaḥ; Ma'or va-Shemesh, Parshat Hukat; R. Jacob Meskin, Mishpat le-Ya'akov, no. 24; and Anaf Yosef, Haggigah 13a.¹⁹According to the authorities who maintain that non-Jews may study the Written Law it is somewhat difficult to understand the negative attitude toward translation of Scripture expressed in Midrash Tanḥuma, Parshat Ki Tissa, 34, Soferim 1:6, and elsewhere, Shulḥan Arukh, Oraḥ Ḥayyim 580:2, states that it is proper to fast on the eighth day of Tevet because on that day the Torah was translated into Greek in the time of Ptolemy “and there was darkness upon the world for three days.” [The statements in Soferim 1:6 and Oraḥ Ḥayyim 580:2 with regard to the translation at the behest of Ptolemy do not appear to present a difficulty since the published text of Soferim 1:6 indicates that the source of grief was the inadequacy of the translation, apparently a reference to the intentional mistranslation of a number of passages as reported in Megillah 9a. Tanḥuma cannot be resolved in this manner because it specifically decries translation as a means of making Torah accessible to non-Jews.] Teshuvot Maharaẓ Ḥayes, no. 32, resolves this difficulty by stating that making the Written Law available to non-Jews is not decried in these situations because of the prohibition against non-Jews studying Torah, but because the gentile nations failed to adhere to the Noachide Code, as stated in Avodah Zarah 2b. Under such circumstances, knowledge of Torah serves no beneficial purpose, particularly since the meaning of the Torah was distorted by them. However, continues Maharaẓ Ḥayes, there exists no continuing objection to translation of the Bible since translations are now readily available and the teaching of Scripture to non-Jews is not intrinsically forbidden. Cf., R. Moses Sofer, Torat Mosheh, Parshat Shemot, and Teshuvot Arugat ha-Bosem, Oraḥ Ḥayyim, no. 213. See, however, R. Ezekiel Landau, Ẓelaḥ al Masekhet Berakhot (New York, 5716), addendum to introduction, p. 110, who decries translation of the Bible. This statement should not be confused with statements against Mendelssohn’s translation of the Bible attributed to R. Ezekiel Landau. The statement contained in the introduction to Ẓelaḥ decries all translations but is not cited by R. Landau’s biographers or by scholars assessing his role in the Mendelssohn controversy. If this addendum is authentic it appears to be at variance with the same authority’s approbation of a facile German translation designed to aid students of the Hebrew text; see Ben-Zion Katz, Rabbanut, Ḥasidut, Haskalah (Tel Aviv, 1956), pp. 198-199 and Shlomoh Wind, R. Yeḥezkel Landau: Toldot Ḥayyav u-Pe‘ulotav (Jerusalem, 5721), pp. 118-119.

Support for Maharsha's position is found in the comments of Me'iri, Sanhedrin 59a. Me'iri states explicitly that it is permitted to give instruction to a prospective convert. Indeed, Me'iri goes beyond Maharsha's position and declares that a non-Jew is forbidden to study Torah only if he does not intend to apply what he has learned in practice. Me'iri is thus quite consistent in permitting Torah study on the part of a prospective convert. Teshuvot Erez Tovah, no. 2, sec. 3, finds evidence bolstering the position of Maharsha in a midrashic statement. Midrash Rabbah, Deut. 1:18, implies that although a non-Jew dare not observe the Sabbath he may do so with impunity once he has undertaken to convert even though he has not yet undergone the conversion ritual. [It may be noted that Tosafot Yeshanim, Yevamot 48b, opines that a non-Jew may observe the Sabbath under such circumstances.] Similarly, argues Erez Tovah, the prohibition against studying Torah does not apply to a non-Jew who has reached a decision to convert.²⁶Teshuvot Ben Yehudah asserts that even according to Maharsha a candidate for conversion may be taught Torah only if the prospective convert has made a definite decision to undergo conversion immediately but the Bet Din insists upon delay. If, however, the candidate is not prepared to convert immediately he may not be taught Torah, argues Teshuvot Ben Yehudah, for “perhaps he will not convert subsequently.”

The biblical passage "You shall not be afraid of the face of any man" (Deuteronomy 1:17) is understood as an admonition directed to judges. This exhortation is amplified in the Sifre ad loc., with the comment, "Lest you say 'I am afraid of so-and-so lest he kill my son or lest he kindle my stack [of corn].' " R. Yonatan Eibeschutz, Urim ve-Tumim 12:2, states that this exhortation applies only in the case of a judge who has already begun trying a case. However, prior to accepting a case for adjudication, a judge who has reason to be afraid of one of the litigants may justifiably decline to involve himself. Indeed, the Gemara, Sanhedrin 6b, cites this verse in stating that a judge who has already heard the litigants' arguments and knows in which direction "the verdict inclines" is forbidden to withdraw because of fear.

But why is a Bet Din not empowered to review the action of another Bet Din? R. Dosa ben Horkanos declares that, if such review were to be undertaken, consistency would require examination of the actions of every Bet Din going back to the time of Moses. The Mishnah does not say that such review is precluded or prohibited. The phraseology of the Mishnah indicates only that such review is unnecessary and superfluous. That principle, however, entails postulation of a logically antecedent principle to the effect that a decision, once issued, acquires validity at least until such time as it is set aside. Only when reviewed and overturned is the previous decision nullified retroactively.⁵²This analysis will serve to reinforce the difficulty in explaining why a blessing is not pronounced by the Bet Din upon issuing a judgment. Despite the fact that the Gemara, Ketubot 106a, indicates that issuance of a judgment constitutes the fulfillment of the commandment “With justice shall you judge your fellow” (Deuteronomy 1:16), there is no source indicating that the members of the Bet Din must pronounce a blessing before announcing their decision. Teshuvot ha-Rashba, no. 18, states that the Sages did not ordain that a blessing be pronounced upon issuance of a decision by a Bet Din because of a fear that the litigants might not accept the decision. See also Bi’ur ha-Gra, Oraḥ Ḥayyim 8:1. Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim, no. 54, maintains that the normative rule is that, contrary to the position of the Palestinian Talmud, a blessing may be pronounced only upon completion of the miẓvah and such completion, he maintains, does not occur until judgment is actually executed.
On the basis of the foregoing it might be argued that, if an erroneous decision is effective and valid, it should follow that issuance of the decision itself constitutes fulfillment of the commandment whether or not it is actually implemented by the litigants.
For an analysis of the difficulties inherent in this position as well as for an alternative thesis explaining why blessings were not ordained prior to performance of certain miẓvot see R. Baruch ha-Levi Epstein, Tosefet Berakhah, Deuteronomy 1:16.

Not to appoint a judge that that does not know the laws of the Torah: That the Great Court or the exilarch was prevented not to appoint a judge to judge people, [who] did not study the wisdom of the Torah and the explanation of its straight and righteous statutes. And even if there are several good characteristics to him, since he is not knowledgeable and an expert in the wisdom of the Torah, it is not fit to appoint him judge. And about this is it stated (Deuteronomy 1:17), "You shall not recognize faces in justice." And so [too,] did they, may their memory be blessed, explain, (Sifrei Devarim 17:1), "'You shall not recognize faces in justice' - this is [addressed to] one who is appointed to seat judges"; meaning to say that this warning comes to him. And they, may their memory be blessed, said (Sifrei Devarim 17:1), "'You shall not recognize faces in justice' - lest you say, 'That man is comely' [or] 'strong' [or wealthy or] 'knows all the languages; I will make him a judge.' Hence it is stated, 'You shall not recognize faces' - as it would come out [that] he exonerates the guilty and incriminates the innocent; not because he is wicked, but because he does not know."

Its laws - such as that which they, may their memory be blessed, said (Midrash Tanchuma 5:3) that just as the one who is fit to be a judge must know the laws of the Torah, so too must he be someone of [good] character traits and a proper man, so that the judged not say to him, "Take out the beam from between your eyes," meaning to say, "adorn yourself [first] and afterwards adorn others" (Sanhedrin 18a); that, behold, it states in the Torah concerning judges (Deuteronomy 1:15), "wise men," meaning to say, those that know the wisdom to judge truthfully, "and known to your tribes," [meaning] that the spirit of men derive pleasure from them, "men of strength," that they are valiant about the commandments, exacting upon themselves and suppress their [evil] inclinations to the point that they do not have any disgrace and any ugliness, and their teaching is beautiful, and [also] included in being men of strength is that they have a brave heart to save the oppressed from the oppressor, like the matter that is stated (Exodus 2:17), "and Moshe rose to save them," and just like our teacher Moshe, peace be upon him, was humble, so too must every judge be humble; and the rest of its details - are elucidated in Sanhedrin in [various] scattered places (see Tur, Choshen Mishpat 18).

That a judge not fear in judgement: That the judge is prevented from being afraid of a man, to judge a truthful judgement - even if he is a man [that is] destructive, brazen-faced and thick-headed - but rather, he should make the verdict and not put his heart at all to that which may befall him of the [possible] damage [to himself] as a result of the judgment. And about this is it stated (Deuteronomy 1:17), "Do not fear any man." And the language of Sifrei Devarim 17:2 [is] "Lest you say, 'I am afraid of man x lest he kill me or "kill one of the people of my home or lest he burn my stacks or lest he cut down my plantings.' [Hence] we learn to say, 'Do not fear any man.'"