The Ramban (beg. Parshas Shoftim) cites the Rambam as holding that the mitzvah to appoint judges applies only in Eretz Yisrael. Ramban challenges this view based on a braysa (Makkos 7) that says that the mitzvah does apply in chutz la'aretz, albeit in a modified form: in Eretz Yisrael there is a mitzvah to appoint judges in every city and every district; outside Eretz Yisrael it suffices to have district judges alone.
Achronim dismiss the Ramban's question because the text we have of the Rambam matches the braysa exactly. However, the is reason to believe some other text of the Rambam (or a similar view in Rishonim) does exist in line with what Ramban quotes. The Sefer haChinuch, who usually echoes the Rambam, does write that the mitzvah of appointing judges applies only in Eretz Yisrael. Why should this be?
Even Ramban's position that there is an identical mitzvah of minuy in chutza la'aretz begs the question of why there is a distinction between Eretz Yisrael, where judges are needed in every city, and chutz la'aretz, where district judges suffice.
There may be two distinct components to the mitzvah of establishing courts: 1) As an end in itself, to fulfill the mitzvah of minuy dayanim; 2) As a necessary means to preserving a just and lawful society.
The mitzvah of minuy dayanim as an end in itself applies only in Eretz Yisrael. This is why the Rambam/Chinuch write that the mitzvah applies only in Eretz Yisrael and why every city must establish a court. However, there is still a need for batei din in chutz la'aretz to enforce justice on an ad hoc basis, as a means to preserving social order. Since the courts in chutz la'aretz are just a means to this end, district courts alone suffice. (See Avi Ezri, Hil. Melachim ch. 9 who applies this distinction to the mitzvah of dinim for ben noach.)
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Dayanim in Eretz Yisrael are also a reflection of Qiddush Hashem, inasmuch as the establishment of justice in the land is one of the loftiest ideals of the Torah and Neviim and represents one of the zechuyot based upon which we inherited Eretz Yisrael. So the very minuy of proper dayanim, even outside of their function, demonstrates our values and priorities.
ReplyDeleteAgree with your point. In chu"l it is a shame that this mitzvah is basically neglected. Managing our own justice system makes a statement that we value a just society as part of our avodas Hashem. One need only read the latest news about the crimes of "rabbis" to see the results of this lesson being lost.
ReplyDeleteAnd why did you not write about the logic of requiring minui where it is not necessary for preserving the social order? Of course, we've all had recourse to the answer "It's a Din." But if the rishonim can talk about the logic of "ka'asher zamam velo ka'asher assa," you can talk about the logic of chiyuv minui above and beyond the means of preserving social order.
ReplyDeleteSince you didn't, I suggest that minui is ma'amid aretz, as reflected in the Bracha of Hashiva Shofteinu, and the more dayanim, the more firm our grip on Eretz Yisrael and the closer our relationship with Hashem. The Medrash here in 5:6, I think, says that the Ribono shel Olam loves Din and loves Klal Yisrael, so He gave us dayanim and dinim. If you have a Lekach Tov, he brings this Medrash and an interesting discussion from, I think, Reb Chatzkel, but I don't remember which Chatzel.
Side point: When you wrote Lekach Tov I immediatly thought of R' Engel and then did a double-take on the rest.
ReplyDeleteAnyway, I can't cover everything!
Of course you can cover everything. Your mistake is thinking too much; if you were to hydroplane over the Yam Hatalmud, you could cover so much more territory, said the Daf Yomi rebbi to the Divrei Chaim, not Reb Chaim Tzanzer.
ReplyDeleteIf I'm not mistaken I think this rambam is from the gemara sanhedran of smichas dayanim, that can only be done in eretz yisrael, ie kiddush hachodesh.
ReplyDelete