August 21, 2012

Today, Tuesday the third day of Elul, 21st August is the 77th Yohrzeit of Maran, Chief Rabbi Avraham Yitzchak Hakohen Kook, zatza”l and so in honour of the occasion I am writing or quoting him early though I might not get to send it until later in the week.

At the beginning of this week’s sedra, the Torah commands us to set up a system of courts and police forces. There are three types of courts in the Torah.

Regular courts of three judges for civil law — litigation and other monetary cases (“dinei mamonot”).

Higher courts of 23 judges to hear cases of capital crimes (“dinei nefashot”). These courts were called ‘Minor Sanhedrins’.

A supreme court of 71 judges, called the ‘Great Sanhedrin’. Located in the Temple complex in Jerusalem, this high court had two functions: (a) to clarify the law in new or unclear cases, and (b) to promulgate new decrees.

The Complexity of Civil Law
Acceptance to the bench of the Great Sanhedrin was certainly most prestigious. All judges are required to be wise and humble, to love truth and hate bribes, to be well-liked and respected. Members of the Supreme Court were expected to be among the greatest scholars of the generation. They needed to be proficient in many sciences, such as medicine and astronomy.

We would similarly expect that membership in a Minor Sanhedrin court would demand greater scholarship than a humble three-member courts. However, the Talmud writes that cases of civil law require more wisdom than the capital crimes that are judged in the Minor Sanhedrins.

“A student who has humbly accepted his teacher’s rebuke on two occasions will be worthy to distinguish between civil law and laws of capital crimes. As Rabbi Ishmael taught: One who wishes to be wise should study civil law, for no other area of Torah study is as intricate — it is like a perpetual fountain.” (Berachot 63b)
This Talmudic statement raises a number of questions:

What sort of reward is this for a suffering student?
What is so difficult about distinguishing between these two areas of law?
What does this distinction have to do with Rabbi Ishmael’s praise of civil law?
Why is civil law more complex than other areas of Torah?

The Difference between Civil and Criminal Law
For some students, their studies come easily and quickly. Other students must struggle in order to master the material. The student who perseveres in his studies, despite blunders in class, will be rewarded for his efforts. As a reward for his diligence and determination, he will not only grasp the particulars of the law, but will also gain insight into its underlying principles. This insight goes beyond the actual details, which are taught directly. It reflects a much more profound understanding of the subject matter.

Civil and capital crimes are both areas of law, yet they differ fundamentally in their objectives. The primary goal of civil law is to resolve monetary disputes between individuals, and restore property to its rightful owner. Only as a secondary goal are current or future benefits to society as a whole taken into consideration. Capital offenses, on the other hand, are usually cases where there is nothing to be rectified or returned. Here the primary goal is to protect the society.

Because of this fundamental difference, monetary law is intrinsically more complicated. Since we need to decide between conflicting claims of ownership in all of the myriad cases of interpersonal relations, this type of law inherently deals with many more intricate details and complex issues. Study of civil law is therefore one of the most challenging areas of Torah study. To truly master this subject requires a profound understanding of the underlying issues — an understanding that can be attained only by the most diligent and persevering students.

From Ayn Ayah vol2. P391.

We pray daily for the restoration of Jewish courts and Jewish judges. Is it a coincidence that Rav Kook passed away in the week of parashat shoftim – judges. Let us hope that he will sit as a righteous judge in the Sanhedrin in Jerusalem in the days of the Messiah.

Meir Wise
Ramat Bet Shemesh


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