לזכות ידי”נ היקר הרה”ג ר’ אליעזר זאב בן דבורה וכל ב”ב לברכה והצלחה בכל
לרפואת הרב ישעיהו מרדכי עזרא בן דבורה
הרב יצחק בן ברכה
שרה לאה בת רבקה
Says the gemara in Sanhedrin [56b]:
דינין בני נח איפקוד והתניא עשר מצות נצטוו ישראל במרה שבע שקיבלו עליהן בני נח והוסיפו עליהן דינין ושבת וכיבוד אב ואם דינין דכתיב (שמות טו, כה) שם שם לו חוק ומשפט שבת וכיבוד אב ואם דכתיב (דברים ה, יא) כאשר צוך ה’ אלהיך ואמר רב יהודה כאשר צוך במרה אמר רב נחמן אמר רבה בר אבוה לא נצרכה אלא לעדה ועדים והתראה אי הכי מאי והוסיפו עליהן דינין אלא אמר רבא לא נצרכה אלא לדיני קנסות אכתי והוסיפו בדינין מיבעי ליה אלא אמר רב אחא בר יעקב לא נצרכה אלא להושיב בית דין בכל פלך ופלך ובכל עיר ועיר והא בני נח לא איפקוד והתניא כשם שנצטוו ישראל להושיב בתי דינין בכל פלך ופלך ובכל עיר ועיר כך נצטוו בני נח להושיב בתי דינין בכל פלך ופלך ובכל עיר ועיר אלא אמר רבא האי תנא תנא דבי מנשה הוא דמפיק ד”ך ועייל ס”ך.
The Gemara asks with regard to the list of the Noachide mitzvos: Were the descendants of Noah commanded to establish courts of judgment? But isn’t it taught in a braisa: The Jewish people were commanded to observe ten mitzvot when they were in Marah: Seven that the descendants of Noach accepted upon themselves, and God added to them the following mitzvos: Judgment, and Shabbos, and honoring one’s father and mother. The mitzva of judgment was given at Marah, as it is written with regard to Marah: “There He made for them a statute and an ordinance” (Exodus 15:25). Shabbos and honoring one’s father and mother were given at Marah, as it is written concerning them in the Ten Commandments: “Observe the day of Shabbos to keep it holy, as the Lord your God commanded you” (Deuteronomy 5:11), and similarly: “Honor your father and your mother, as the Lord your God commanded you” (Deuteronomy 5:16). The phrase “as the Lord your God commanded you” indicates that they had already been commanded to observe these mitzvos previously. And Rav Yehuda says: “As the Lord your God commanded you” in Marah. Apparently, the mitzva of establishing courts is not included in the seven Noahide mitzvot.
Rav Nacḥman says that Rabba bar Avuh says: Establishing courts is a Noachide mitzva. The additional mitzva that was given in Marah was necessary only with regard to the details of the halachos of the justice system, e.g., that a defendant in a capital case is punished only by a full panel of twenty-three judges of the Sanhedrin, and only if there are two witnesses who testify concerning him, and only if he was issued a forewarning before his transgression.
The Gemara asks: If so, and the mitzva given at Marah is a specification of the halachos of the justice system, what is the meaning of the sentence: And God added to them: Judgment? The details of a preexisting mitzva would not be referred to as an added mitzva.
Rather, Rava says: The mitzva given at Marah was necessary only with regard to the halachos of fines. Since these are not halachos that pertain to the basic performance of justice, but rather concern an additional fine for the guilty party, they were not given to the descendants of Noah.
The Gemara asks: According to this interpretation, the language of the braisa is still inaccurate, as it should have stated: And God added to them more halachos of judgment.
Rather, Rav Acḥa bar Ya’akov says: It was necessary only for the additional requirement to establish a court in each and every province and in each and every city.
The Gemara asks: And were the descendants of Noach not commanded with regard to this matter? But isn’t it taught in a braisa: Just as the Jewish people were commanded to establish courts in each and every province and in each and every city, so too, the descendants of Noach were commanded to establish courts in each and every province and in each and every city?
Rather, Rava says: This tanna, who holds that the mitzva of establishing courts of judgment is not included in the Noachide mitzvos, is the tanna of the school of Menashe, who removes from the list of the Noachide mitzvos two mitzvos whose mnemonic is dalet, kaf, which stands for judgment [dinim] and blessing the name of God [birkas Hashem], and inserts in their place two mitzvos whose mnemonic is samech, kaf, standing for castration [seirus] and diverse kinds [kilayim].
From this gemara we see that the mitzva to establish courts in every province and city is NOT part of the mitzva of דינים. This is because the gemara attempts to say that the mitzva of establishing these courts is a later addition at Marah to the primary mitzva of דינים that was already given before.
Now let us see the Rambam [Melachim 9-14]:
וְכֵיצַד מְצֻוִּין הֵן עַל הַדִּינִין. חַיָּבִין לְהוֹשִׁיב דַּיָּנִין וְשׁוֹפְטִים בְּכָל פֶּלֶךְ וּפֶלֶךְ לָדוּן בְּשֵׁשׁ מִצְוֹת אֵלּוּ. וּלְהַזְהִיר אֶת הָעָם. וּבֶן נֹחַ שֶׁעָבַר עַל אַחַת מִשֶּׁבַע מִצְוֹת אֵלּוּ יֵהָרֵג בְּסַיִף. וּמִפְּנֵי זֶה נִתְחַיְּבוּ כָּל בַּעֲלֵי שְׁכֶם הֲרִיגָה. שֶׁהֲרֵי שְׁכֶם גָּזַל וְהֵם רָאוּ וְיָדְעוּ וְלֹא דָּנוּהוּ. וּבֶן נֹחַ נֶהֱרָג בְּעֵד אֶחָד וּבְדַיָּן אֶחָד בְּלֹא הַתְרָאָה וְעַל פִּי קְרוֹבִין. אֲבָל לֹא בְּעֵדוּת אִשָּׁה. וְלֹא תָּדוּן אִשָּׁה לָהֶם:
What must they do to fulfill their requirement regarding the Law of Justice? They have to set up magistrates and judges in each district to judge the people with regard to these Six Commandments; and they must issue warnings (about them) to the people. A non-Jew who violates one of the Seven Commandments is executed by means of the sword. How is this so? Anyone who worships idols or blasphemed or murdered or had sexual relations with one of those forbidden to him or stole even less than the value of a Prutah or ate any amount from a limb or the flesh of a live animal or saw someone else violate one of these and failed to judge and execute him, is himself executed by means of the sword. It was for this reason all residents of the City of Shechem deserved to be executed. For Shechem kidnapped, and they saw and knew and failed to judge him. A non-Jew is executed by the testimony of one, and with one judge, without forewarning, and by the testimony of relatives, but not by the testimony of a woman. A woman may not judge for them.
1] We see from the Rambam that establishing courts is part and parcel of מצות דינים. So it is the Rambam לשיטתו i.e. against the gemara:-). How are we to understand this?
2] Also – the gemara says that חיובי קנסות were added later in Marah, implying that all other monetary law was part of דינים. But the Rambam says nothing of the sort?? מצות דינים for the Rambam is just establishing courts. How does the Rambam deal with the gemara?
3] Also, the gemara [.נ”ט] says that the מצוה of דינים has both קום ועשה and שב ואל תעשה [active and passive]. According to the Ramban that דיני ממונות are included in מצות דינים everything is cool – we have דיני ממונות that are both active and passive. But according to the Rambam, that the mitzva is establishing courts, all we have is קום עשה but no שב ואל תעשה? Encore une fois [“once again” in French] the Rambam is against the gemara – or so it seems [“ou alors il semble”].
4] The Ramban [Parshas Vayishlach] and Ran [Sanhedrin 56] asked on the Rambam why there would be a חיוב מיתה on not establishing courts when the gemara says אזהרתן זוהי מיתתן – being warned is the death penalty and אזהרתן always refers to a לא תעשה and not an עשה [as the Rambam holds here].
5] Another question: The Rambam writes that בני שכם were killed because they didn’t establish courts. Asked the Ramban and Ran – Were the 7 nations not ALSO idol worshippers, sexually promiscuous etc. OF COURSE THEY WERE [the psukim tell us to avoid their abominations], so why was the only problem according to the Rambam their lack of court system?? [Think about it – Would we execute a Nazi just because he ate אבר מן החי?]
6] Moreover, if they were חייבים מיתה – Why did Yaakov get angry with Shimon and Levi for executing their punishment?? He should have done it himself first!! It must be that it was not the job of בני יעקב to carry out the punishment, so what is the Rambam talking about when he says that נתחייבו כל בעלי שכם הריגה for not establishing a court and judging שכם??
7] Another difficulty: According to the opinion in the gemara that בני נח don’t have a מצוה of דינים, how do we understand the parsha of the killing of אנשי שכם? It must be that they were not justified in doing what they did – right? So just like according to that opinion there is no proof that they must establish courts, even according to the way we hold, that they DO have a mitzva of דינים, there is no proof that they must establish courts!!??
8] We are not done:-). Asked the Maharal in the Gur Aryeh: The Rambam says that they were guilty for not judging שכם for stealing. What were they supposed to do?? How do you judge a king? That is not within their power so they are אנוס. The Halacha is that בני נח aren’t punished when they are אנוסים??!!
9] As if we don’t have enough problems – It say says in the pasuk that they killed all of the males – which would include children. But the Rambam paskens [מלכים י-ב] that Gentile minors are exempt from punishment?? The Rambam himself writes here that כל בעלי שכם were חייבים. But why the children??
There is yet more, but this is enough to digest. Stay tuned for the continuation [I HOPE:-].