2019/5780

Al HaDin- Introduction to the Role of Dinim at the Universal Plane

“Al Sheloshah Devarim Ha’Olam Kayam Al HaDin Al Ha’Emet Ve’Al-HaShalom,” “Upon three things, the world continues: on justice, on truth, and on peace” (Mishnah Avot 1:18). Rabbi Shimon Ben Gamaliel’s coda to the first chapter of Avot, in contrast to the celebrated triad of Shimon HaTzadik towards the very beginning of the chapter, strikes a universal note. First on this list, of course, is the institution of Din.

As such, one need not look further than this Mishnah to establish the vital role that Din, or judgment, plays at the universal plane, constituting one of the pillars upon which the world rests. Me’iri , in distinguishing between the two Mishnayot in question, notes that the latter Mishnah actually deals with three different aspects of Din, interpreting the Mishnah as identifying the importance of a judiciary per se, the integrity of such a body, and finally, the possibility of achieving harmonious settlement in matters of litigation, known as Pesharah. Inter alia, Me’iri directly references the absence of such a system of Din as responsible for the wickedness of the Dor HaMabul, which allowed the proliferation of Chamas, theft.

Indeed, the destruction of this entire generation in itself constitutes foundational evidence supporting the crucial role Dinim plays at the universal plane. Moreover, classical rabbinic interpretations of the destruction of Sodom and its satellite cities place considerable blame on judicial malpractice in the city, in addition to the obvious and ubiquitous absence of Chessed in both the text of Sefer BeReishit as well as in rabbinic literature. It is striking that, in launching their assault against Lot and his guests, the mob in Sedom specifically decry his putative functioning as a judge, “Ha’Echad BaLagur VaYishpot Shafot Atah Nara Lecha MeiHem,” “Did one come to dwell and judge judgement? Now, we will treat you worse than them” (BeReishit 19:9), as a casus belli.

It is to a halachic exploration of the parameters of Dinim at the universal sphere that this second essay in our five part series will be dedicated. This essay itself, due to the extremely intricate nature of the subject matter, will be divided into two parts. In the first section, we will deal with the primary Talmudic evidence, and subsequently, with the divergent approaches of the various Rishonim.

II. The Place of Dinim in Mitzvot Bnei No'ach in Talmudic Sources

In the locus classicus of the discussion of the Mitzvot Bnei No'ach in Masechet Sanhedrin, we find four different traditions with respect to the place of Dinim as part of the rubric. According to three of these views, dinim are squarely ensconced within the Mitzvot, albeit from derivations that different significantly in their orientations, as well as their implications. According to a minority view, the Tanna DeVei Menasheh, Dinim is not one of the universal commandments.

With respect to the majority position, one which is deemed normative by Rambam, as indicated, there are a variety of derivations. According to Rabi Yochanan, the mitzvah of Dinim is derived from the word “VaYetzav,” “And He commanded,” in the context of the Divine command to Adam to consume the fruit of the Garden, in light of a Gezeirah Shavah which employs the same term in the context of Avraham Avinu insisting that his children and household uphold standards of Tzedakah and Mishpat.

According to this tradition, Dinim is perceived of as part of a broader moral framework, one which is linked, intrinsically, to a requirement to engage in tzedakah as well. Indeed, Ran ruled, on the basis of this passage as well as a subsequent one in this broader Sugya, that there is a universal obligation to perform the mitzvah of Tzedakah. Strikingly, he cites as proof of this the destruction of Sedom, one which is associated by Yechezke’eil HaNavi with their failure to sustain the indigent, “VeYad Ani Ve’Evyon Lo Hechezikah” “And the hand of the poor and the destitute it did not strengthen”.

According to a variant tradition, that of Rabi Yitzchak Nafcha, the obligation of Dinim is derived from a subsequent word in the verse in which Adam is commanded regarding the fruits of the Garden. In this case, the term is Elokim, which is often used in the context of Elohim, that is, a Beit Din. According to this derivation, the nature of the Mitzvah of Dinim would appear to be an obligation to resolve matters of dispute in the context of a Beit Din, as the Gemara cites, “VeNikrav Ba’al HaBayit El Ha’Elohim,” “And the homeowner shall approach the judges”.

One does not get the sense from this passage that Dinim is part of a broader structure of moral standards, as one does from Rabi Yochanan’s derivation coupling Tzedakah and Mishpat, but rather it is a pragmatic, utilitarian mechanism to ensure that matters of dispute do not escalate and that a modus vivendi exists for resolution.

According to a third tradition in the Talmud, identified as a Yeish Omerim (meaning Some Say), Adam HaRishon received only three commandments: the prohibition against idolatry, the restriction against blasphemy, and the obligation of Dinim. It is absolutely striking, according to this view, that Dinim could assume such a fundamental place within the universal sphere of command such that it was issued prior to restrictions against murder, sexual immorality, or theft.

Moreover, it is equally noteworthy that this view derives the obligation of Din from the name of the Almighty Himself: “Elokim Ani, Yehe Mora’i Aleichem,” “I am God, My fear should be upon you.” In this sense, the obligation of Dinim, much like the prohibition of idolatry and blasphemy, emanates from the Almighty’s existence in its own right. Much as His very essence, apparently, is justice, “HaTzur Tamim Po’alo Ki Chol Derachav Mishpat,” “The Rock, his deeds are perfect, for all his ways are justice,” mutatis mutandis, all humans are obliged in standards of Dinim.

Finally, in the course of this Talmudic debate, both with respect to the place of Dinim within the universal set of obligations, and, presuming the affirmative option, the nature of the derivation, the Talmud probes the precise scope of Dinim as it applies to all humanity. The Talmud raises the possibility that universal standards of justice do not require multiple judges, nor mutiple witnesses, nor issuance of warning for the sake of implementing penalties.

Moreover, the Talmud debates whether or not courts must be established in every province and city, as would be the case within the Jewish court system, or if a regional court system would suffice. In all of the aforementioned matters, Rambam ruled leniently, and permitted a merely regional, as opposed to a municipal, court system and capital rulings to be issued by a solitary judge on the basis of single witness testimony, without any warning issued to the alleged perpetrator prior to the action in question.

III. “Two Dinim” in Dinim

In probing why, exactly, the restriction against gentiles observing the Sabbath, that is, a requirement that they actually perform creative labor during every twenty-four hour period, is not listed within the universal mandates, the Talmud makes a dramatic assertion regarding the Mitzvot Bnei No'ach: “Ki Ka Chashiv Sheiv Ve’Al Ta’aseh Kum Aseih Lo Ka Chashiv,” “It counted [among the list of seven] prohibitions, but positive commandments, it did not count.” That is, the list of Mitzvot Bnei No'ach merely encompassed the relevant restrictions. Affirmative obligations, apparently, were not listed.

This distinction itself is nothing short of tantalizing. It is inconceivable, within the framework of Taryag (the set of 613 Mitzvot which the Jewish People were given), that one would ever imagine simply omitting the two hundred forty-eight positive obligations, even if they are greatly outnumbered by the three hundred and sixty-five prohibitions.

On the contrary, Rambam and Ramban’s famous assertion that the former relate to the general obligation to love the Almighty, while the latter pertain, largely, to awe and reverence of Him, would make such an omission simply inconceivable. Indeed, this conceptual paradigm forms the basis of Ramban’s explanation of the principle of Aseih Docheh Lo Ta’aseh.

And yet, at the universal plane, according to this tradition, only prohibitions were enumerated, even if affirmative obligations did indeed exist. This classification alone highlights and reinforces the nature of the universal mandates as being meant to promote a stabilizing set of restrictions to society, but perhaps, not one which engenders or cultivates a deep sense of love and intimacy between the Almighty and His creatures. Indeed, as we saw previously, “Elokim Ani Yehei Mora’i Aleichem” , but it is highly instructional that no parallel mandate of Ahavah exists.

The implications of this classification strike at the very heart of the difference between the constructs of Taryag and Mitzvot Bnei No'ach. While, as we began this series, each human life is invaluable and precious, in the sense of “Chaviv Adam SheNivra BeTzelem,” “Beloved is man, for he was created in the [Divine] image” (Mishnah Avot 3:14), even the exclusive system of enumeration of restrictions highlights that the rubric of Mitzvot Bnei No’ach may indeed exist, as this essay began, to ensure Kiyum Ha’Olam and Yishuvo Shel Olam, but does not aspire to generate the intimacy of “ViHiyitem Li Segulah MiKol Ha’Amim Ki Li Kol Ha’Aretz,” “And you shall be for Me treasured from among all the nations, for Mine is the land” (Shemot 19:5), a proposition offered in the days leading up to the revelation of Taryag at Sinai.

Returning to the Talmudic discourse, the Talmud immediately queries regarding Dinim. Is it not the case that the mandate to implement justice is a positive command in nature, and yet, according to the majority of views, is indeed included on the list of seven universal commands?

The Talmud responds that Dinim itself contains ‘two Dinim’, a dual nature, with both an affirmative, Kum Aseih, component, as well as a prohibitive component. As explicated by Rashi, an affirmative obligation exists to adjudicate, to bring perpetrators of injustice to account, alongside a personal obligation to refrain from committing acts of injustice, patterned on the Torah prohibition of Lo Ta’asu Avel.

This apparently dual nature to the Mitzvah of Dinim raises fundamental questions. Is this characterization of the Mitzvah normative? If it is, which strain is dominant-- the positive, affirmative obligation to implement justice, or the prohibition against committing acts of personal injustice? Is the former, affirmative obligation, best characterized as a form of Chovat HaTzibur, wherein the community as a whole must establish a judiciary, whilst the prohibition against committing acts of injustice retains a clearly personal orientation, a Chovat HaYachid, or are both considered to devolve upon the individual, rather than the community?

These questions form the very foundation of a classical dispute between Rambam and Ramban regarding the nature of Dinim which will represent our point of departure in the next installation in the series.

See the commentary (ad loc.) of Rav Ovadiah Bartenura, who explicitly draws this contrast between the Mishnayot in question and references the relevance of the latter to “Yishuvan Shel Bnei Adam,” “The settlement of humankind.” This phrase is significant at two levels: first, it directly references the universal obligation concerning positive cultivation of the world (see the previous installation in this series for an exploration of this issue with the relevant Talmudic sources); second, it employs the universal term Bnei Adam in conjunction with the target audience of this Mishnah, literally, all of humanity.

Both Bartenura and Rabbenu Yonah (ad loc.) assume that din here references courts and judgments rendered therein. See, however, Rambam, in his Commentary to the Mishnah (ad loc.), who interprets the term in conjunction with proper discharging of governmental administration, “Hanhagat HaMedinah.” For a third alternative, see the commentary of Tiferet Yisrael, Yachin, which relates to the term as connoting personal standards of ethics and interpersonal behavior, that is, injurious behavior at the corporeal, financial, emotional, or spiritual plane, “Shelo Ye’avel Hu Be’Atzmo LeChaveiro LeGufo LeMammono LiChvodo UNishmato.” The distinction between the approaches of the first and third school will be mirrored by the fundamental dispute between Rambam and Ramban explored in depth later in this space.

There are variant texts with respect to whether the proper text in the case of Rabbi Shimon Ben Gameliel’s triad is “Omeid” or “Kayam”. The former, of course, would match the word employed by Shimon HaTzadik in conjunction with Torah, Avodah, and Gemilut Chasadim. See Tosafot Yom Tov ad loc.

Beit HaBechirah, Avot, Chapter 1. Meiri strongly advocates for the text of “Kayam” in our latter Mishnah (see previous footnote), which indicates the elements necessary for the functioning of society, as opposed to “Omeid” in the earlier triad which communicates foundational values or aspirations toward which the world, or the human being, was meant to aspire.

See Talmud Sanhedrin (108a) commenting on BeReishit 6:13.

See, for just one representative example, the classical passage in Talmud Sanhedrin (109b), “Arba Dayanei Hayu BiSedom….”

Ad loc. 56a-59a.

Ibid, 56b. Dinim and blasphemy are replaced with sterilization and forbidden mixtures (Kilayim) in the view of the Tanna DeVei Menasheh.

Hilchot Melachim 9:1

Bereishit 2:16.

Bereishit 18:19.

Chidushei HaRan, Sanhedrin 56b, s.v VaYetzav Eilu HaDinim.

Ibid 57b: “Banav LeDin Beito LiTzedakah,” “His sons to do judgement and his household to do charity.” Rambam considered this passage normative as well, in restricting courts to male judges and witnesses.

Yechezke’eil 16:46. See also Avot 5:10, “Sheli Sheli VeShelcha Shelcha Zo Middat Sedom,” “One who says, what is mine is mine and what is yours is yours, this is the quality of Sedom.”

Shemot 22:7.

This is made explicit in the Talmudic passage (56b), in a statement of Rav, Elokim Ani, Lo Tekaliluni; Elokim Ani, Lo Temiruni; Elokim Ani, Yehe Mora’i Aleichem.

Devarim 32:4.

Ibid, 56b.

It is absolutely fascinating to note that the universal standard of regional, as opposed to municipal courts, is in fact suggested by the Talmud elsewhere (Makkot 7a) to be an acceptable Halachic standard within the Jewish legal system outside of the Land of Israel. See the discussion of Rambam in the opening chapters of Hilchot Sanhedrin, as well as the extensive analysis of the commentaries (ad loc.) as to the proper text of Rambam. See also Ramban’s introductory essay to Parshat Shoftim (Devarim 16:18) in which he raises the possibility that there might be no obligation whatsoever to have standing courts outside of the Land of Israel.

Hilchot Melachim Chapter 9.

And, not merely on the Sabbath itself. See Sanhedrin (58b) and Rashi, ad loc, s.v. Amar Ravina.

Ibid.

See commentary to Avot, 1:3.

Commentary to Shemot 20:8.

Ibid.

Sanhedrin 56b.

Shemot 19:5. See Targum Onkelos, Rashi, and Ramban, ad loc. all of whom interpret Segulah to refer to the profound attachment of the Almighty to the Jewish people in relation to all other nations. In a phrase, “Beni Bechori Yisrael,” “Israel is my firstborn son” (Shemot 4:22).

Ibid 59a.

Ad loc. s.v VeHaDinim, as well as s.v. UMeshani.

Rashi, ibid.