5780/2019

In the previous installment of this series, we established that according to all views, with the sole exception of the Tanna DeVei Menasheh,1 Dinim was indeed part of the corpus of the Mitzvot Bnei No'ach. Moreover, it was established, based on a subsequent passage in the same section of Masechet Sanhedrin,2 that Dinim has a dual character, with both an affirmative, Kum Aseih component, as well as a restrictive, Sheiv Ve’Al Ta’aseh component. Rashi3 understood this duality to concern an obligation to administer justice, as well as an injunction against committing injustice patterned on the prohibition of Lo Ta’asu Avel BaMishpat.4 Our attention now turns to further analysis of the parameters of this duality in the Rishonim. This essay will focus on Rambam’s view. View of Rambam 1 Sanhedrin 56b. 2 Sanhedrin 59a. 3 Ad loc. s.v. UMeshani. 4 VaYikra 19:15. It is important to note that the focus of this verse is injustice in interpersonal business dealings, establishing the Sheiv Ve’Al Ta’aseh component, according to Rashi (ibid. S.v. Lo Ta’asu), as a Chovat HaYachid. In a striking and celebrated passage,5 Rambam, prima facie, appears to restrict the Mitzvah of Dinim to the affirmative component of Hoshavat Dayanim, appointing courts, to enforce the other six Mitzvot Bnei No’ach. Unlike Jewish courts in the Land of Israel, where municipal and regional courts are required, Rambam merely requires regional courts.6 Strikingly, Rambam appears to associate a death penalty with a sin of omission, that is, failure to establish such a network of regional courts to enforce penalities associated with the other universal laws. As such, Rambam justifies the killing of all of the citizens of Shechem on the basis of their failure to bring Shechem to account for abducting Dinah. As noted by the Lechem Mishneh,7 Rambam’s apparent view is at odds with the dual nature of Dinim as described by the Talmud in Sanhedrin. While it is possible that Rambam did not accept this passage as normative, it is very difficult to understand, as Ramban8 famously challenges, how Rambam could assign a death penalty to a sin of omission, as opposed to one of transgression of a prohibition. Indeed, careful examination of Rambam’s total view of Mitzvot Bnei No'ach reveals that in the other Kum Aseih which applies beyond the bounds of Bnei Yisrael, namely, circumcision for descendents of Keturah, he explicitly notes that there can be no death penalty associted with a failure to implement an affimative obligation.9 In consideration of the apparently missing restrictive component of Dinim in Rambam’s view, Lechem Mishneh10 himself provides an innovative solution by highlighting Rambam’s utilization of a seemingly extraneous phrase in his discussion of Dinim. After noting the fundamental obligation inherent upon each individual member of the universal community to establish the aforementioned courts, and to appoint judges to administer cases involving the other six laws, Rambam adds the words, “U’LeHazhir Et Ha’am,” “And to admonish the people.” Lechem Mishneh assumes that in these words, Rambam, in effect, is arguing that the judges have a particular responsibility to warn universal society from transgressing basic standards of fairness. Given that this interpretation of the Sheiv Ve’Al Ta’aseh aspect of Dinim does not devolve on the individual members of the universal community, but is, evidently, a Chovat HaDayanim, Lechem Mishneh remains dubious as to whether his reading of Rambam could justify Rambam’s own claim that all of the inhabitants of Shechem were liable for the death penalty. They, of course, would not have violated any prohibition in this reading of Rambam. It seems to me that an alternative explanation of Rambam is plausible, one which addresses both the seeming omission of the dual nature of Dinim in Rambam’s presentation, as well as the basic problem with Rambam assigning a death penalty to a sin of omission, in contradiction not only to the Talmudic principle of Azharah 5 Hilchot Melachim 9:14. 6 As will be explored in the next installation, Ramban (BeReshit 34:13 s.v. VaYa’anu) rejects this point in Rambam as well and argues, on the basis of a Talmudic passage (Sanhedrin 56b), that municipal courts are required in addition to provincial courts. 7 Hilchot Melachim, ad loc. 8 Ramban ibid. 9 See Hilchot Melachim 10:8 and Radvaz ad loc. 10 ibid. Shelahen Zo Hi Mitatan,11 but, perhaps of greater moment, in seeming contradiction with Rambam’s own view regarding Bnei Keturah who do not undergo circumcision. It is vital to note that Rambam codifies Dinim at the very end of the ninth chapter of Hilchot Melachim, in which all of the seven Biblical restrictions of Bnei No'ach are discussed. Additionally, Rambam inverted the order of the last two restrictions of Bnei No'ach at the end of this chapter relative to his presentation in the opening of the chapter, in which Rambam, discussing the chronology of the development of the Mitzvot, lists Dinim prior to Eiver Min HaChai. The inversion is all the more striking as, in all other respects, Rambam punctiliously follows his sequencing from earlier in the chapter: Avodah Zarah, Birkat HaSheim, Shefichut Damim, Arayot, and then Gezel. Moreover, in the coda of the chapter, in which Rambam actually discusses Dinim, there is a peculiar formulation. It would have seemed most natural for Rambam to finish his discussion of the singular Mitzvah of Dinim and then conclude the chapter by noting that violating any of the seven laws results in the the death penalty by decapitation. Remarkably, however, Rambam does not follow this logical pattern and instead opens his discussion of Dinim with the obligation to appoint justices to administer the other six laws. He concludes his discussion by noting that universal law recognizes the authority of a single judge, the actionability of a single witness testimony, the permissibility of testimony from relatives, and the absence of a requirement for issuance of a warning to the alleged perpetrator prior to commission of the act. In the very middle of this presentation of Dinim, Rambam includes the following language: “UVen No’ach She’Avar Al Achat MiSheva Mitzvot Eilu Yeihareig BeSayif UMipnei Zeh Nitchayvu Kol Ba’alei Shechem Hareigah SheHarei Shechem Gazal VeHeim Ra’u VeYadu VeLo Danuhu,” “And a Ben No’ach who transgress one of these seven commandments shall be killed by the sword, and therefore all of the citizens of Shechem incurred the death penalty, for Shechem stole (i.e. kidnapped) and they saw and knew, and yet they did not judge him.” Both by virtue of his placement of Dinim at the very end of the chapter, inverting his previous order, as well as his otherwise inscrutable statement that a gentile who violates, “She’avar,” any one of the seven Mitzvot is put to death by sword, Rambam appears to be asserting that he absolutely understood there to be a Sheiv Ve’Al Ta’aseh component to Dinim, one that does carry with it the death penalty, in addition to the affirmative obligation of establishing a regional judiciary. For Rambam, the citizens of Shechem are put to death for committing the Lo Ta’aseh of Dinim, which is allowing one of the other six violations to go unchecked. In the case of the citizens of Shechem, the violation is one of Gezel, which activates the Shev Ve’Al Ta’aseh of Dinim when the penalty is deliberately not enforced, as Rambam indicates with the words, “They saw and knew, and yet they did not judge [Shechem].” It is perhaps precisely for this reason that Rambam inserted the clause, “UVen No’ach She’Avar Al Achat MiSheva Mitzvot Eilu Yeihareig BeSayif,” “And a Ben No’ach who transgress one of these seven commandments shall be killed by the sword,” in the very middle of his presentation of Dinim, with the obligation to appoint judges placed just before this clause, and the aforementioned 11 Sanhedrin 57a. specifics of Dinim (a single judge, a lone witness, etc.) situated immediately afterwards. What Rambam means to say is that dinim can only be a capital crime in conjunction with one of the other six Noahide laws. As such, this clause is not an interruption of his discussion of Dinim, but rather, the lynchpin itself, the critical explanation for how Dinim, which is otherwise merely an affirmative obligation to establish a judiciary, could indeed be grounds for capital punishment. For this reason, it may have been profoundly compelling to place Dinim, in this context, after the discussion of Eiver Min HaChai and the other five laws, as it is only when one of the other six Mitzvot have been actively transgressed, and one actively allows this injustice to take place, that the violation of Dinim, as it were, is said to have been committed. Rambam’s doctrine of guilt by omission, of a legal transitive principle whereby Shechem’s violation of Gezel triggers an active violation of Dinim by all the residents of the town, Lo Danuhu, when they fail to bring him to justice, represents an astonishing standard of personal responsibility for maintaining justice in society. It is a Halachic doctrine that recognizes the insidious nature of immorality and the grave consequences of an unwillingness to enforce standards of social behavior. Above all, Rambam’s reading seems to be confirmed by the Torah’s own language in the context of the Dor HaMabul, “VaTimalei Ha’Aretz Chamas,” “And the land was filled with extortion.”12 Unchecked theft pervaded all the earth, rendering it, and all of its inhabitants, thieves or not, beyond redemption. In this article, we endeavored to clarify Rambam’s position on the Mitzvah of Dinim. Next week, we will explore Ramban’s wholesale repudiation of Rambam’s doctrine.

[1] Sanhedrin 56b.

[1] Sanhedrin 59a.

[1] Ad loc. s.v. UMeshani.

[1] VaYikra 19:15. It is important to note that the focus of this verse is injustice in interpersonal business dealings, establishing the Sheiv Ve’Al Ta’aseh component, according to Rashi (ibid. S.v. Lo Ta’asu), as a Chovat HaYachid.

[1] Hilchot Melachim 9:14.

[1] As will be explored in the next installation, Ramban (BeReshit 34:13 s.v. VaYa’anu) rejects this point in Rambam as well and argues, on the basis of a Talmudic passage (Sanhedrin 56b), that municipal courts are required in addition to provincial courts.

[1] Hilchot Melachim, ad loc.

[1] Ramban ibid.

[1] See Hilchot Melachim 10:8 and Radvaz ad loc.

[1] ibid.

[1] Sanhedrin 57a.

[1] BeReishit 6:11.