וַיַּ֥עַל מֹשֶׁ֖ה וְאַהֲרֹ֑ן נָדָב֙ וַאֲבִיה֔וּא וְשִׁבְעִ֖ים מִזִּקְנֵ֥י יִשְׂרָאֵֽל׃
און משה, און אַהרן, נָדָבֿ, און אַבֿיהוא, און זיבעציק פֿון די עלטסטע פֿון ישׂראל, זײַנען אַרױפֿגעגאַנגען;
Ramban
AND UNTO MOSES HE SAID: ‘COME UP UNTO THE ETERNAL etc.’ “This section was told to Moses before the giving of the Ten Commandments, on the fourth day of Sivan.” This is Rashi’s language. “And the Eternal said unto Moses: ‘Come up to Me into the mountain, and be there’465Verse 12 (further in this section). — this was said to Moses after the Giving of the Torah.” These too are Rashi’s words. But if so, the sections of the Torah are not in chronological order, nor even in their ordinary sense! Moreover, it is written here, And Moses came and told the people all the words of the Eternal, and all the ordinances,466Verse 3. which are these ordinances written above, concerning which He said, And these are the ordinances which thou shalt set before them.467Above, 21:1. For it is not correct to interpret the expression: and all the ordinances,466Verse 3. to mean [as Rashi wrote], the ordinances which “the sons of Noah”468See Vol. I, p. 417, Notes 147-8. were commanded, or the laws which were given to the Israelites in Marah469See above, 15:25. which they had already heard and knew, and besides, the word vayesapeir (and he told)466Verse 3. always indicates new things which one tells!
But Rabbi Abraham ibn Ezra has already grasped this subject correctly, in explaining the verses to be in their proper order, when he commented:470On the preceding Verse (23:33). “Up to here is the Book of the Covenant.” On the basis of this statement it can be seen that all the sections of the Torah are in methodical arrangement. For after the Giving of the Torah immediately on the same day G-d said to Moses, Thus shall you tell the children of Israel: Ye yourselves have seen that I have talked with you from heaven,471Above, 20:19. and He began to warn them again against idolatry, by saying, Ye shall not make with Me etc.,472Ibid., Verse 20. and He continued to command him, Now these are the ordinances which thou shalt set before them,467Above, 21:1. and all the commandments following that, and finally He finished with the admonition against the worship of idols which they find in the Land, and against making a covenant with their worshippers. He then said to Moses, “After you have commanded them this, come up unto the Eternal, thou and Aaron.” The section mentions that Moses did according to the command of G-d, and came to the camp and told the people all the words of the Eternal466Verse 3. as He had commanded him, Thus shall you tell the children of Israel: Ye yourselves have seen etc.;471Above, 20:19. and all the ordinances,466Verse 3. as He had commanded him, Now these are the ordinances which thou shalt set before them.467Above, 21:1. The people received everything with joy and said, All that the Eternal hath spoken will we do,473Above 19:8. See though my Hebrew commentary, p. 447, where it is pointed out that since this verse relates to an event before the Revelation and Ramban is now discussing the events after the Revelation, we must perforce understand his use of that verse, in a stylistic manner, namely, that the people joyfully accepted upon themselves the duty of observing all of G-d’s commandments. meaning that all these things which G-d has told you we will do, for we believe in your words; just as he narrated in the Book of Deuteronomy [that the people said to him], and thou shalt speak unto us all that the Eternal our G-d may speak unto thee; and we will hear it, and do it,474Deuteronomy 5:24. and then Moses wrote them down. Thus on that day he wrote down in a book all that he had been commanded — the statutes, the ordinances, and the laws — and he rose up early in the morning475Verse 4. of the following day to make a covenant with them concerning all this. He built the altar and offered the sacrifices,475Verse 4. and put half of the blood upon the altar of G-d, and half of it he put in basins476Verse 6. [in order to sprinkle upon the people],477As explained further in Ramban, (also in Rashi). For the reason of exact division into two equal parts see further in the text of Ramban and also in Note 479. and he took the book which he had written the day before and read it in their hearing,478Verse 7. and they accepted upon themselves to make the covenant with Him, saying. All that the Eternal hath spoken will we do, and hearken478Verse 7. to you and to whatever you will command in His Name. Then he sprinkled upon them half of the blood [which he had put in the basins], for this is the sign of a covenant, when two things479By putting half of the blood upon the altar of G-d and the other half upon the people, Moses indicated that “the two [parties to the covenant] come into equal parts.” See Deuteronomy 26:17-18, and also Vayikra Rabbah 6:5, where the equal division of the blood is explained as signifying that G-d swore to Israel never to exchange it for another nation, and Israel swore eternal fidelity to G-d. come in equal parts. Now after he finished what he did with them, he had to fulfill the word of G-d which He told him, Come up… thou and Aaron, etc. and it is with reference to this that it is said, Then went up Moses, and Aaron, Nadab, and Abihu etc.480Verse 9. He completed that which he had been commanded,481I.e., And Moses alone shall come near unto the Eternal (Verse 2). by coming near alone unto the Eternal. It is with reference to this that it is said, And Moses entered into the midst of the cloud etc.482Further, Verse 18. Thus the act of the covenant took place on the day after the Giving of the Torah, and on that day was the ascent, when Moses went up into the mountain and he stayed from then on for forty days. It is with reference to this that Scripture explains, and on the seventh day He called unto Moses out of the midst of the cloud,483Ibid., Verse 16. [i.e., the seventh day of the month Sivan, which was the day after the Giving of the Torah], and it is said, And Moses entered into the midst of the cloud.482Further, Verse 18. All this is correctly and clearly explained.
Now I have seen in the Mechilta484Mechilta above, 19:10. That the Rabbis differed on this matter. Some say485This is the opinion of Rabbi Yishmael. that the making of the covenant took place before the Giving of the Torah — on the fifth day of Sivan — and Moses said to them: “Now you are bound, held and tied; tomorrow come and accept upon yourselves all the commandments.” But Rabbi Yosei the son of Rabbi Yehudah says: “All these acts were done on one and the same day,” that is to say all these acts were performed on the same day, namely the day after the Torah was given — all that Moses told the people and the writing of the Book of the Covenant — all as we have explained. And to this one [i.e., Rabbi Yosei the son of Rabbi Yehudah] we listen, since he has spoken according to the accepted opinion.486See Peah 4:1 for origin of this expression [“to this one we listen etc.”].
But Rabbi Abraham ibn Ezra has already grasped this subject correctly, in explaining the verses to be in their proper order, when he commented:470On the preceding Verse (23:33). “Up to here is the Book of the Covenant.” On the basis of this statement it can be seen that all the sections of the Torah are in methodical arrangement. For after the Giving of the Torah immediately on the same day G-d said to Moses, Thus shall you tell the children of Israel: Ye yourselves have seen that I have talked with you from heaven,471Above, 20:19. and He began to warn them again against idolatry, by saying, Ye shall not make with Me etc.,472Ibid., Verse 20. and He continued to command him, Now these are the ordinances which thou shalt set before them,467Above, 21:1. and all the commandments following that, and finally He finished with the admonition against the worship of idols which they find in the Land, and against making a covenant with their worshippers. He then said to Moses, “After you have commanded them this, come up unto the Eternal, thou and Aaron.” The section mentions that Moses did according to the command of G-d, and came to the camp and told the people all the words of the Eternal466Verse 3. as He had commanded him, Thus shall you tell the children of Israel: Ye yourselves have seen etc.;471Above, 20:19. and all the ordinances,466Verse 3. as He had commanded him, Now these are the ordinances which thou shalt set before them.467Above, 21:1. The people received everything with joy and said, All that the Eternal hath spoken will we do,473Above 19:8. See though my Hebrew commentary, p. 447, where it is pointed out that since this verse relates to an event before the Revelation and Ramban is now discussing the events after the Revelation, we must perforce understand his use of that verse, in a stylistic manner, namely, that the people joyfully accepted upon themselves the duty of observing all of G-d’s commandments. meaning that all these things which G-d has told you we will do, for we believe in your words; just as he narrated in the Book of Deuteronomy [that the people said to him], and thou shalt speak unto us all that the Eternal our G-d may speak unto thee; and we will hear it, and do it,474Deuteronomy 5:24. and then Moses wrote them down. Thus on that day he wrote down in a book all that he had been commanded — the statutes, the ordinances, and the laws — and he rose up early in the morning475Verse 4. of the following day to make a covenant with them concerning all this. He built the altar and offered the sacrifices,475Verse 4. and put half of the blood upon the altar of G-d, and half of it he put in basins476Verse 6. [in order to sprinkle upon the people],477As explained further in Ramban, (also in Rashi). For the reason of exact division into two equal parts see further in the text of Ramban and also in Note 479. and he took the book which he had written the day before and read it in their hearing,478Verse 7. and they accepted upon themselves to make the covenant with Him, saying. All that the Eternal hath spoken will we do, and hearken478Verse 7. to you and to whatever you will command in His Name. Then he sprinkled upon them half of the blood [which he had put in the basins], for this is the sign of a covenant, when two things479By putting half of the blood upon the altar of G-d and the other half upon the people, Moses indicated that “the two [parties to the covenant] come into equal parts.” See Deuteronomy 26:17-18, and also Vayikra Rabbah 6:5, where the equal division of the blood is explained as signifying that G-d swore to Israel never to exchange it for another nation, and Israel swore eternal fidelity to G-d. come in equal parts. Now after he finished what he did with them, he had to fulfill the word of G-d which He told him, Come up… thou and Aaron, etc. and it is with reference to this that it is said, Then went up Moses, and Aaron, Nadab, and Abihu etc.480Verse 9. He completed that which he had been commanded,481I.e., And Moses alone shall come near unto the Eternal (Verse 2). by coming near alone unto the Eternal. It is with reference to this that it is said, And Moses entered into the midst of the cloud etc.482Further, Verse 18. Thus the act of the covenant took place on the day after the Giving of the Torah, and on that day was the ascent, when Moses went up into the mountain and he stayed from then on for forty days. It is with reference to this that Scripture explains, and on the seventh day He called unto Moses out of the midst of the cloud,483Ibid., Verse 16. [i.e., the seventh day of the month Sivan, which was the day after the Giving of the Torah], and it is said, And Moses entered into the midst of the cloud.482Further, Verse 18. All this is correctly and clearly explained.
Now I have seen in the Mechilta484Mechilta above, 19:10. That the Rabbis differed on this matter. Some say485This is the opinion of Rabbi Yishmael. that the making of the covenant took place before the Giving of the Torah — on the fifth day of Sivan — and Moses said to them: “Now you are bound, held and tied; tomorrow come and accept upon yourselves all the commandments.” But Rabbi Yosei the son of Rabbi Yehudah says: “All these acts were done on one and the same day,” that is to say all these acts were performed on the same day, namely the day after the Torah was given — all that Moses told the people and the writing of the Book of the Covenant — all as we have explained. And to this one [i.e., Rabbi Yosei the son of Rabbi Yehudah] we listen, since he has spoken according to the accepted opinion.486See Peah 4:1 for origin of this expression [“to this one we listen etc.”].
Ramban
AND MOSES CAME AND TOLD THE PEOPLE ALL THE WORDS OF THE ETERNAL. At the time that this whole commandment mentioned here was given, Moses was at the place where he drew near unto the thick darkness where G-d was,508Above, 20:18. and now he came to that “far off” place where the people had been at the time of the Revelation,508Above, 20:18. and told them all that he had been commanded [i.e., beginning with Ye yourselves have seen — above 20:19 — up to the end of all the commandments and ordinances, 23:33], and they listened to his voice. Scripture does not say here: “and he came down from the mountain,” for they were all then at the lower part of the mountain,509Ibid., 19:17. and not at the top where the Glory of G-d was; [the difference] was only that Moses was near the place of the thick darkness, whilst the people stood from afar at the time of the giving of the commandments, as I have explained.510Ibid., 19:19, and 20:15. When Moses left his place and began coming towards the people, all the heads of their tribes and their elders came up to the place where the priests that come near to the Eternal511Ibid., 19:22. stood, and said to him, Now therefore why should we die? for this great fire will consume us;512Deuteronomy 5:22. Go thou near, and hear etc.,513Ibid., Verse 24. for they thought that the Revered G-d Himself would tell them all the commandments of the Torah just as He had told them the Ten Commandments. Then Moses came together with the heads of the tribes and the elders to the place where the people were standing and told all of them all the words of G-d, and they said, “We will do all that He has commanded us in the Ten Commandments, and we will hearken514Verse 7. to your voice in everything that you have commanded, or will command in His Name, exalted be He.” When Moses went back afterwards to the edge of the mountain with the elders, as G-d had commanded him,506Above, Verse 1. then G-d said to him again, Come up to Me into the mountain, and be there.515Verse 12. It was at that time that He informed him, I have heard the voice of the words of the people, which they have spoken unto thee; they have well said all that they have spoken,516Deuteronomy 5:25. and He commanded him: Go say to them: Return ye to your tents. But as for thee, stand thou here by Me, and I will speak unto thee all the commandment, and the statutes, and the ordinances, which thou shalt teach them.517Ibid., Verses 27-28. It is with reference to this that He said here, And I will give thee the Tablets of stone, and the law and the commandment,518Verse 12. See Vol. I, p. 7 for Ramban’s interpretation of each term mentioned. meaning, that to you alone I will give the law and the commandments which you will teach them, and they will keep them as they have undertaken to do.
Tosafot
“[And these are the civil laws] that you shall set before them”; the verse equates a woman with a man. In Shemot 21, 1, the Torah states “and these are the laws that you shall place before them”. Who are “them”? In our Gemara which presents this verse as proof that the monetary laws of the Torah apply equally to men and women, it seems that the word “them” refers to the people in general. See Rashi ד"ה לפניהם: who says that all or included, men and women.
Tosafot quotes a Gemara that says that “them” refers to judges. Women are excluded from being judges. It seems ironic that the very same word, which our Gemara uses as proof that women are included in the monetary laws of the Torah, is simultaneously referring to judges where women are excluded.
This is bewildering! But לפניהם – “before them” is speaking only about those who are qualified to be judges?1Tosafot proves from the Gemara in Gittin 88b that the word לפניהם refers to judges. He then proves that women are disqualified from judging. At this point the commentators are puzzled as to what exactly Tosafot is asking. If Tosafot is asking how the verse can be speaking about qualified judges and also at the same time about the people to be judged, the question remains unanswered. Tosafot eventually answers that women are eligible to judge, but this does not explain how the verse can be speaking about two different subjects. It seems that Tosafot was unconcerned about the fact that the same verse is interpreted in Gittin as speaking about judges and in Bovo Kamo about the people to be judged. Why not? פני יהושע suggests that the verse is definitely speaking about judges. The Gemara here assumes that women are eligible to judge, and if so, whoever is eligible to judge certainly can be judged. Tosafot then asks: But women are not eligible to judge as indicated in Needoh 49b? Tosafot answers that they definitely can judge and he shows how Needoh 49b is not discussing women at all. What emerges according to פני יהושע is that the verse לפניהם is speaking only about judges and we learn via kal v’chomer that whoever is eligible to judge, certainly can be judged. See Tosafot HoRosh in Gittin 88b who says that the word לפניהם can refer to two different subjects, judges and those to be judged. According to his approach Tosafot may be asking: How can the two subjects have differing halochohs? The subject ‘judges’ exclude women and ‘those to be judged’ including women. Tosafot then answers that women are also included in the subject of judges. For that is how the Gemara expounds this verse in the last Perek of Gittin (88b) לפניהם – “before them” and not before commoners who are not ordained with s’meechoh.
Tosafot is saying that because the verse is discussing those qualified to be judges, women are excluded, but how does Tosafot know that women are excluded from being judges?
And a woman is disqualified from judging as we have learned in a Mishna in Perek Bo Simon (Needoh 49b): Whoever is qualified to judge is qualified to testify, and a woman is disqualified from testifying as the Gemara says in HaChovail (below 88b) and in Perek Sh’vuas Ho’Aidus (Sh’vuous 30a).2In Bovo Kamo 88b, the Gemara mentions in passing that women are disqualified from testifying. In Sh’vuos 30a the Gemara cites the source in D’vorim 19, 17, “and the two men shall stand” this refers to the witnesses. Since the Mishna says “whoever is qualified to judge is qualified to testify” and we know that a woman is not allowed to testify, it must be that a woman is not qualified to judge. Otherwise, the statement that whoever can judge can testify would be untrue, because a woman can judge but not testify.
Tosafot retracts from his initial assumption that women are not qualified to be judges. We can answer: That the Mishna in Bo Simon (Needoh 49b) is speaking about a man. The Mishna means: Any man who is qualified to judge is qualified to testify. If a man is qualified to be a judge he is certainly qualified to testify. If he is not qualified to testify, he cannot be a judge. This does not exclude women who are not qualified to testify but are qualified to be judges.
Tosafot attempts to show how we might derive that women may be judges from a Biblical source, but then rejects this proof. And from that which is written about D’vorah (Shoftim 4, 4), “she judges Yisro’ail”, which definitely is proof that she was qualified to be a judge, we cannot bring proof that a woman is qualified to judge, because perhaps they accepted her upon themselves,3In matters of monetary law when both sides agree, they may go to a judge that is not qualified to rule by Torah law. See Mishna in Sanhedrin 24a. For example two disputants may decide to bring their dispute before ‘three cowherds’ who are not well versed in Torah law. Once they agree to go, the decision is binding. This may have been the system through which D’vorah was empowered. Initially the people agreed to go to her to adjudicate their differences because of her intimacy with the divine presence. They felt that because of her sanctity they would receive a proper decision. She never had the authority to force people to come to her because a woman is unqualified to judge. even though she was not legally qualified to judge, because of the divine presence that was with her.
If you ask: In Gittin (88b) we expound לפניהם – “before them” to exclude commoners who are not ordained, and here we expound the same word to include women?4See note 1. On the surface this seems like a repetition of Tosafot first question. פני יהושע explains: Initially Tosafot understood a our Gemara as saying that the Gemara assumed that women can judge and via kal v’chomer we learn that they can be judged. Tosafot is now revisiting the initial verse on this subject לפניהם – before them. Who are ‘them’? Rashi in Masechet Gittin says that this word refers to the ‘seventy of the elders of Yisro’ail’, mentioned in the verse at the end of Parashat Mishpatim 24, 9. Those are the members of the Great Sanhedrin and must definitely be men, as the verse states in Bamidbor 11, 16, in reference to the Great Sanhedrin “seventy men of the elders of Yisro’ail”. If so Tosafot asks: The reference of לפניהם is to a group that definitely excludes women. How can we learn via kal v’chomer that women can be judges?
We can answer: That there in Gittin 88b, we exclude commoners who are not ordained because the word לפניהם – “before them” refers to the word אלהים – “judges” that is written many times throughout the passages 5See notes 1 and 4. According to פני יהושע Tosafot is saying that the word לפניהם is not referring to the ‘seventy elders’ but to the many times that the word ‘אלהים – judges’ appears in the Parsha. That word does not exclude women and thus we can learn via kal v’chomer that women who may judge can certainly be judged. that discuss the monetary laws in Parashat Mishpatim. See Shemot 21, 6, and 22, 7, 8. Thus, the term לפניהם– “before them” is saying that the trial must be bought before judges as indicated in the word אלהים; the אלהים that is written in those passages does not exclude women.
If the source of the ruling that s’meechoh judges are required is the word אלהים that is written through out the passages, why is the word לפניהם needed?6If לפניהם refers to ‘seventy elders’ we could say that it is needed to exclude women judges. The verse would be teaching us that only judges such as the ‘seventy men of the elders’ are to adjudicate monetary law. But now that we say the verse is not referring to the ‘seventy men’, but rather to the ‘judges’ mentioned throughout the verses dealing with monetary law and we are not excluding women, why is the verse needed at all? If you ask: without the word לפניהם – “before them” we can elicit that s’meechoh judges are required from the word “אלהים– judges”, which means experts?
Tosafot explains that there is something new that is derived from the word לפניהם. We can answer; That לפניהם – “before them” is needed to teach us that for all matter of coercion of those who do not want to follow Torah law even though it is not a judgment, i.e. if a person refuses to do a mitzvah such as take the four species on the first day of Sukos, the court will force him to do so. No ‘judgment’ is required. It is very clear that the Torah requires one to take an esrog and lulov and that this individual is refusing to do so, even so s’meechoh judges are required to institute the process of coercion.
And so is it evident in the first Perek of Sanhedrin (7b) where the Gemara expounds from the words that precede לפניהם in the verse, אשר תשים – “that you shall place” the Gemara asks: the verse should read “that you shall teach them”? The Gemara then answers: The word תשים – “place” refers to the apparatuses of the judges needed to coerce those who refuse to obey the court.
Tosafot quotes a Gemara that says that “them” refers to judges. Women are excluded from being judges. It seems ironic that the very same word, which our Gemara uses as proof that women are included in the monetary laws of the Torah, is simultaneously referring to judges where women are excluded.
This is bewildering! But לפניהם – “before them” is speaking only about those who are qualified to be judges?1Tosafot proves from the Gemara in Gittin 88b that the word לפניהם refers to judges. He then proves that women are disqualified from judging. At this point the commentators are puzzled as to what exactly Tosafot is asking. If Tosafot is asking how the verse can be speaking about qualified judges and also at the same time about the people to be judged, the question remains unanswered. Tosafot eventually answers that women are eligible to judge, but this does not explain how the verse can be speaking about two different subjects. It seems that Tosafot was unconcerned about the fact that the same verse is interpreted in Gittin as speaking about judges and in Bovo Kamo about the people to be judged. Why not? פני יהושע suggests that the verse is definitely speaking about judges. The Gemara here assumes that women are eligible to judge, and if so, whoever is eligible to judge certainly can be judged. Tosafot then asks: But women are not eligible to judge as indicated in Needoh 49b? Tosafot answers that they definitely can judge and he shows how Needoh 49b is not discussing women at all. What emerges according to פני יהושע is that the verse לפניהם is speaking only about judges and we learn via kal v’chomer that whoever is eligible to judge, certainly can be judged. See Tosafot HoRosh in Gittin 88b who says that the word לפניהם can refer to two different subjects, judges and those to be judged. According to his approach Tosafot may be asking: How can the two subjects have differing halochohs? The subject ‘judges’ exclude women and ‘those to be judged’ including women. Tosafot then answers that women are also included in the subject of judges. For that is how the Gemara expounds this verse in the last Perek of Gittin (88b) לפניהם – “before them” and not before commoners who are not ordained with s’meechoh.
Tosafot is saying that because the verse is discussing those qualified to be judges, women are excluded, but how does Tosafot know that women are excluded from being judges?
And a woman is disqualified from judging as we have learned in a Mishna in Perek Bo Simon (Needoh 49b): Whoever is qualified to judge is qualified to testify, and a woman is disqualified from testifying as the Gemara says in HaChovail (below 88b) and in Perek Sh’vuas Ho’Aidus (Sh’vuous 30a).2In Bovo Kamo 88b, the Gemara mentions in passing that women are disqualified from testifying. In Sh’vuos 30a the Gemara cites the source in D’vorim 19, 17, “and the two men shall stand” this refers to the witnesses. Since the Mishna says “whoever is qualified to judge is qualified to testify” and we know that a woman is not allowed to testify, it must be that a woman is not qualified to judge. Otherwise, the statement that whoever can judge can testify would be untrue, because a woman can judge but not testify.
Tosafot retracts from his initial assumption that women are not qualified to be judges. We can answer: That the Mishna in Bo Simon (Needoh 49b) is speaking about a man. The Mishna means: Any man who is qualified to judge is qualified to testify. If a man is qualified to be a judge he is certainly qualified to testify. If he is not qualified to testify, he cannot be a judge. This does not exclude women who are not qualified to testify but are qualified to be judges.
Tosafot attempts to show how we might derive that women may be judges from a Biblical source, but then rejects this proof. And from that which is written about D’vorah (Shoftim 4, 4), “she judges Yisro’ail”, which definitely is proof that she was qualified to be a judge, we cannot bring proof that a woman is qualified to judge, because perhaps they accepted her upon themselves,3In matters of monetary law when both sides agree, they may go to a judge that is not qualified to rule by Torah law. See Mishna in Sanhedrin 24a. For example two disputants may decide to bring their dispute before ‘three cowherds’ who are not well versed in Torah law. Once they agree to go, the decision is binding. This may have been the system through which D’vorah was empowered. Initially the people agreed to go to her to adjudicate their differences because of her intimacy with the divine presence. They felt that because of her sanctity they would receive a proper decision. She never had the authority to force people to come to her because a woman is unqualified to judge. even though she was not legally qualified to judge, because of the divine presence that was with her.
If you ask: In Gittin (88b) we expound לפניהם – “before them” to exclude commoners who are not ordained, and here we expound the same word to include women?4See note 1. On the surface this seems like a repetition of Tosafot first question. פני יהושע explains: Initially Tosafot understood a our Gemara as saying that the Gemara assumed that women can judge and via kal v’chomer we learn that they can be judged. Tosafot is now revisiting the initial verse on this subject לפניהם – before them. Who are ‘them’? Rashi in Masechet Gittin says that this word refers to the ‘seventy of the elders of Yisro’ail’, mentioned in the verse at the end of Parashat Mishpatim 24, 9. Those are the members of the Great Sanhedrin and must definitely be men, as the verse states in Bamidbor 11, 16, in reference to the Great Sanhedrin “seventy men of the elders of Yisro’ail”. If so Tosafot asks: The reference of לפניהם is to a group that definitely excludes women. How can we learn via kal v’chomer that women can be judges?
We can answer: That there in Gittin 88b, we exclude commoners who are not ordained because the word לפניהם – “before them” refers to the word אלהים – “judges” that is written many times throughout the passages 5See notes 1 and 4. According to פני יהושע Tosafot is saying that the word לפניהם is not referring to the ‘seventy elders’ but to the many times that the word ‘אלהים – judges’ appears in the Parsha. That word does not exclude women and thus we can learn via kal v’chomer that women who may judge can certainly be judged. that discuss the monetary laws in Parashat Mishpatim. See Shemot 21, 6, and 22, 7, 8. Thus, the term לפניהם– “before them” is saying that the trial must be bought before judges as indicated in the word אלהים; the אלהים that is written in those passages does not exclude women.
If the source of the ruling that s’meechoh judges are required is the word אלהים that is written through out the passages, why is the word לפניהם needed?6If לפניהם refers to ‘seventy elders’ we could say that it is needed to exclude women judges. The verse would be teaching us that only judges such as the ‘seventy men of the elders’ are to adjudicate monetary law. But now that we say the verse is not referring to the ‘seventy men’, but rather to the ‘judges’ mentioned throughout the verses dealing with monetary law and we are not excluding women, why is the verse needed at all? If you ask: without the word לפניהם – “before them” we can elicit that s’meechoh judges are required from the word “אלהים– judges”, which means experts?
Tosafot explains that there is something new that is derived from the word לפניהם. We can answer; That לפניהם – “before them” is needed to teach us that for all matter of coercion of those who do not want to follow Torah law even though it is not a judgment, i.e. if a person refuses to do a mitzvah such as take the four species on the first day of Sukos, the court will force him to do so. No ‘judgment’ is required. It is very clear that the Torah requires one to take an esrog and lulov and that this individual is refusing to do so, even so s’meechoh judges are required to institute the process of coercion.
And so is it evident in the first Perek of Sanhedrin (7b) where the Gemara expounds from the words that precede לפניהם in the verse, אשר תשים – “that you shall place” the Gemara asks: the verse should read “that you shall teach them”? The Gemara then answers: The word תשים – “place” refers to the apparatuses of the judges needed to coerce those who refuse to obey the court.