Our Parsha begins by establishing the authority of Judges and Officers (Shoftim v’Shotrim) within the emerging national entity of Am Yisrael. The scope of their authority is quite extensive, and, at least according to one opinion in the Midrash (Sifrei 154) as quoted by Rashi, (17:11) we have an obligation to follow the dictates of the Sanhedrin even if their ruling contradicts the normative Halacha. On the surface, this suggestion is surprising, to say the least. Are we truly meant to ignore what we know to be true and follow an erroneous ruling of Sanhedrin?
Ramban appears to agree with this approach, defending it on the grounds that it is a necessary accommodation to prevent fissures and machloket within the nation. We accept the ruling of Sanhedrin, because failure to do so would lead to unending debate and strife. Ramban seems to adopt the approach famously articulated by American Supreme Court Justice Robert Jackson: “they are infallible because they are final”.
Not surprisingly, there are other opinions, beginning with the Yerushalmi (Horiyot 1:1) and adopted by various Rishonim regarding how to interpret this passuk, which enjoins us not to waver from their (Sanhedrin’s) rulings “either to the right or to the left” so that it does not suggest that Sanhedrin was mistaken in their ruling. These commentators suggest that it is only in cases where it appears to us that the court had erred that we need to follow their dictates. However, in a situation where it is undisputable that a mistake has been made, there is no obligation to follow the ruling of the Sanhedrin. Nonetheless, the very fact that a mainstream opinion, and arguably the mainstream opinion, understands the verse as commanding us to follow the words of the Sanhedrin even when they are mistaken, clearly demonstrates the latitude that Chaza’l were willing to consider for the authority of the judges.
There is a fascinating suggestion made by Abarbanel (quoted and expanded upon by Rav Yehuda Cooperman in his book Kedushat Peshuto Shel Mikra) which seeks to blend the two approaches quoted above. Abarbanel posits that the laws of the Torah are general in nature (Mishpetai haTorah hem kollim) and they are therefore not suited to confront every situation which might arise. This principle is so fundamental, says Abarbanel, that blind adherence to legal principles in the Torah could lead to catastrophe. As an example Abarbanel cites the difficulty that pure halacha presents in attempting to convict a murderer. If a violent society were to rely upon pure Torah principles to enforce the law this would have catastrophic consequences. Therefore, says Abarbanel, the Torah provides a judicial escape hatch whereby the Sanhedrin can decree and enforce laws which, while technically at odds with Halacha, in fact reflect true Torah and Halachik values. This flexibility is what the Midrash alludes to when it says to follow the Sanhedrin’s dictates to the right or left. Even when the cold halacha says “left”, one must still follow the dictates of Sanhedrin to go “right”, as that is the behavior which will preserve the true Torah principle (of “left”).
The Parsha’s interest in the legal system which is to be implemented upon entering Eretz Yisrael does not end with the courts. The Torah then proceeds to discuss the parameters of a monarchy which will act as the executive branch of government in the soon to be established nation. This statement is also a subject of discussion, specifically in regard to question of whether crowning a king is a command or dispensation. But either way, this passage is a second step in establishing the norms of governance for Am Yisrael.
Like Abarbanel’s judges, the king, too is granted tremendous leeway in legislating and implementing laws, even if they appear to be outside the framework of normative halacha. Rabbenu Nissim (Derashaot HaRan Derasha #11) explicitly allows for the king to legislate laws to protect the public good, even if these laws are not in consonance with the pure halacha. As an example, he too points to the difficulties that application of the halacha regarding convicting murderers as a test case. At one point (page 442 in the Mossad HaRav Kook edition) he uses terms which are echoed in Abarbanel’s explanation regarding judges: “that his (the king’s) actions …are to ensure that the Torah’s laws and mitzvoth will be properly kept”.
The Parsha then proceeds to discuss the third element in the governing structure, the role of the Navi. This idea that the Judges, King and Navi form a three pronged ruling class is stated explicitly by Ibn Ezra (18:9) who says “and once (Moshe) finishes discussing the Judge and the Priest (which opens the discussion of the King), he (now) mentions the Navi. (I am aware that our interpretation here “lumps” the Priest (Kohanim) and the King together as a single caste. Seforno (19:2) delineates them as separate groups.)
The juxtaposition of the Navi and the kosem (sorcerer) might lead us to conclude that the role of the Navi is essentially to act as a “kosher” fortune teller. After all, predicting the future is what the other nations expect of their sorcerers. However, as Rav Elchanan Samet points out in his study of this Parsha (Iyunim B’Parshat HaShavua, third series), such a characterization of a Navi would be woefully incomplete. In fact the Navi is an indispensable member of the “leadership team”, as can be understood from even a cursory reading of the pasukkim (18: 15-18). Moshe tells the people that Hashem will raise up a Navi like me (kamoni). You are commanded to listen to him (eilav tishmaun). Finally the Navi is no less than an emissary of God, an individual who is commanded to faithfully transmit Hashem’s message to His people (V’natati devari b’fiv, v’dibair aleihem et kol asher azavenu). Clearly then, someone who we are commanded to listen to and follow, whose authority is modeled upon that of Moshe Rabbeinu, our nation’s first and most distinguished leader, and most importantly is a shaliach of Hashem, is more than a mere fortuneteller. He or she is an integral part of the leadership model of the nation.
The command to follow the dictates of the Navi might seem laughably obvious, but it in fact reflects a critical element of the role of Navi. If we were to approach this statement from a purely logical perspective, we would most likely assume total convergence between what the Torah commands and what he Navi says. Yet, the Gemara in Yevamot (90b) tells us that this is not the case. “Even if he commands you to transgress one of the mitzvoth of the Torah, (as in the) case of Eliyahu at Har HaCarmel, you should heed him for that time.” This is what is commonly referred to as Horaat Sha’a, a temporary decree.
Rambam (Hilchot Yesodei HaTorah 9:1-5) codifies this statement as Halacha and lays down four conditions that must be met before we agree to transgress a mitzvah at the behest of a navi, even as Haraat Sha’a. Firstly, the navi in question needs to have established his prophetic bona fides. We need to know that he is a navi. Secondly, the command to transgress is limited in duration. A navi can not change a halacha, he can merely suspend it. Thirdly, there must be a clear purpose which the Horaat Sha’a will accomplish. We need to understand what the navi hopes to accomplish by suspending a halacha. Finally, there is no dispensation under any circumstance to require that the nation worship idols.
Does a navi have autonomy in declaring a Horaat Sha’a, and if he does what might the limits of that autonomy be? Rambam, as we have seen, limits the navi’s authority to cases where the rationale is clear and where there is no command to worship idols. But we can ask a more fundamental question regarding the navi’s authority in this area. Can a navi declare a Horaat Sha’a on his own, or must it be commanded by Hashem? In other words, does the navi have the actual authority to suspend a halacha, or do we merely accept the word that he is faithfully transmitting a directive from Hashem to suspend the halacha., but he has no authority to change any halacha, even on a temporary basis, on his own authority.
Of the different examples of a navi declaring a Horaat Sha’a, the only one which might be on the navi’s own authority would be the case of Eliyahu on Har HaCarmel who commanded that a sacrifice be brought outside the Beit HaMikdash. (Three other cases, two cited by Rav Samet (Melachim I 20:35-37 and Melachim II 3:19) and one cited by Rav Yehuda Cooperman in Kedushat Peshuto Shel Mikra (Shoftim 6:21) are clearly situations where the navi is responding to a command from Hashem. Rav Samet presumably does not cite this case since it is an example of the navi himself transgressing, as opposed to the navi commanding someone else to transgress.) Therefore, if it turns out that Eliyahu was commanded by Hashem to bring the sacrifice, we would have to conclude that a navi has no authority to take the radical step of declaring a Horaat Sha’a on his own.
As Rav Samet details, it turns out that the question as to if Eliyahu acted on his own authority is in fact a subject of dispute. Rashi adopts the position that Hashem commanded Eliyahu to bring the sacrifice, while Radak, Ralbag and Abarbanel believe that Eliyahu acted of his own accord. (Rav Samet has difficulty determining Ramban’s position, as in our Parsha Ramban seems to say that a navi must be acting on a specific command, while in Parshat Korach he seems to grant Moshe autonomy. While this apparent contradiction requires further analysis one might tentatively suggest that Moshe had a different status than other, lesser neviim.)
If we accept that a navi has autonomy to declare his own Horaat Sha’a we can see a perfect parallel between all three branches of Am Yisrael’s “leadership team”. The Torah grants all three significant leeway to move beyond the strictures of Halacha in order to ensure social cohesion and a Torah based society.
