2019/5780

I.

In the previous installation of this series, we explored Rambam’s view of Dinim for Bnei No’ach. In particular, we assessed Rambam’s view of the Talmudic assertion3 of a dual character to the Mitzvah of Dinim, that is, its inclusion of both positive, affirmative components, as well as a prohibition. We argued that Rambam, contrary to Ramban’s critique, did indeed accept the dual character of dinim: in addition to the requirement to establish regional courts. Rambam maintained that if any of the other six commandments maintaining to Bnei No’ach were violated, and justice was not administered, this constituted a violation of Dinim, and would indeed incur the death penalty, in accordance with the basic principle, “Azharah SheLahen Zo Hi Mitatan,” “Their warning is their sentencing to death.”4 Indeed, we argued that Rambam’s language supported the notion that it was a violation of Dinim, and not merely the neglect of a Mitzvat Aseih, that rendered the entire city of Shechem, in Rambam’s judgment, liable of a capital crime.

II.

Ramban’s critiques of Rambam’s position are extensive. At the technical level, Ramban insists that gentiles would have an obligation to establish not only regional courts, but municipal ones as well.5 Moreover, Ramban argues that Rambam’s assertion that the residents of Shechem were actually guilty of the capital crime of Dinim is incorrect for three distinct reasons. First, if it were so, why exactly would Ya’akov have been so unsparing in his criticism of Shimon and Leivi? Were it only a matter of the manifest danger into which they placed the family, Ya’akov surely should not have continued to excoriate these two sons on his deathbed, decades later. Second, given that it can be readily assumed that the inhabitants of Shechem were idolaters, and therefore, clearly in violation of the Mitzvot Bnei No’ach, why would Rambam justify Shimon and Leivi’s actions on the basis of Dinim, when there were clearer violations of which these individuals were presumably guilty? Third, Ramban asserts that even if Rambam were correct in principle, that the failure to administer justice to someone, such as 3 Sanhedrin 59a. 4 Sanhedrin 57a. 5 Ramban to BeReishit 34:13 s.v. VaYa’anu on the basis of Sanhedrin 56b. Shechem, who is in violation of the Gezel statute for Bnei No’ach, does incur a death penalty, the citizens of Shechem should still be exculpated on the basis of fearing for their lives. While Jewish judges are, in many cases, required to risk even their lives for the sake of administering justice, on the basis of “Lo Taguru Mipnei Ish,” “You shall not be afraid of any man” (Devarim 1:17). Ramban cites a passage in the Talmud Yerushalmi which exempts non-Jews from administering justice when there is a potential threat to their lives.6 As such, the citizens of Shechem had legitimate grounds to collectively recuse themselves from administering justice to Shechem and his father, Chamor, as these powerful individuals surely could have, and most likely, would have responded in a violent, vindictive, and lethal way.

III.

The first of Ramban’s critiques of Rambam, namely, Yaakov’s unequivocal condemnation of his son’s behavior, prima facie, appears to be the strongest evidence against Rambam’s position. And yet, upon further scrutiny, it actually is the most vulnerable to a variety of different rejoinders. Ran7, for example, takes the most straightforward approach, noting that it is indeed plausible that Ya’akov’s reaction to his son’s massacre of the entire city was predicated exclusively on the recklessness that he perceived in their actions. Indeed, an actual miracle was required, that of a Divine fear which haunted the local tribesmen, to allow Ya’akov and his family to escape. As such, Rambam’s position regarding the fundamental culpability of the citizens of Shechem for failing to administer Dinim could be maintained, while arguing that Shimon and Leivi wrongly applied it to a case that would put them and their entire family in grave danger. Indeed, by Ramban’s own lights, which allow, under the laws of Bnei No’ach, recusal when life is in danger, surely, Shimon and Leivi would have had no responsibility to bring the citizens of Shechem to justice if that meant endangering their own lives. Me’iri8, by contrast, offers an alternative possibility as to why Ya’akov was so enraged, even if, technically speaking, the citizens of Shechem were liable for a death penalty on the basis of Dinim. Me’iri argues that Ya’akov’s anger was directed against the abrogation of a treaty which the citizens of Shechem and Ya’akov’s family had entered, and that Yaakov’s family, having given their word, was now obligated to act Lifnim MiShurat HaDin, and to honor their word with the citizens of Shechem. Ramban9 himself raises a similar point, noting that 6 See. however, Rashi to Sanhedrin 56b, s.v. Yehei, who understands the verse in question to be relevant to non-Jews as well. It is, however, unclear, as to whether Rashi would allow a non-Jewish judge to recuse himself in a case of fear of life. The matter is further complicated by the absence of an extant text in any edition of Talmud Yerushalmi which supports Ramban’s assertion. 7 Chidushei HaRan Sanhedrin 56b s.v. VaYetzav. 8 Beit HaBechirah, Sanhedrin 56b. 9 ibid. once the people of Shechem had acceded to the conditions for integration and covenant proposed by Ya’akov’s sons, killing them precluded the possibility that they might fully repent from their pagan and idolatrous lifestyle. Finally, perhaps the most ambitious defense of Ya’akov’s righteous anger against Shimon and Leivi, even if one assumes the basic rectitude of Rambam’s position regarding dinim, is articulated by Radbaz10. He argues that once the citizens of Shechem had undergone circumcision, the principle of KeKatan HaNolad Dami was in effect, and there could be no culpability for past offenses, including Dinim.

IV.

The clear possibility of the aforementioned defenses of Rambam’s position notwithstanding, Ramban proceeds to affirm the dual character of Dinim. Indeed, Ramban writes that there is an obligation to establish both regional and municipal courts, but further, that the prohibition of Dinim is absolutely sweeping in scope, and encompasses viritually all areas of civil and criminal law, including torts, labor, assault, battery, sexual assault, custodianship, mergers and acquisitions, credit and loans, in direct parallel to Torah law. Of course, the primary difference would be that violations in any of these areas would incur a death penalty for a gentile, on the basis of Azharah Shelahen Zo Hi Mitatan, whilst none of these areas would trigger such a severe penalty for a Jew. At one level, Ramban’s doctrine of a zero tolerance policy for even financial crimes seems more than a little draconian. And yet, if one posits, as we have argued in previous installations within this series, that the Mitzvot Bnei No’ach are, in a total sense, designed less for the creation of a set of laws predicated on an intimate relationship between the Creator and his Chosen Nation, but, quite simply, a means of establishing sufficient deterrent to prevent the frightful state of nature, “Ish Et Rei’eihu Chayim Bela’o” “A man would devour his living neighbor,”11 one can understand the importance of swift and severe justice in Mitzvot Bnei No’ach as a matter of essential deterrence. It would appear that this was precisely the way Ran understood the institution of Dinim in the framework of the Mitzvot Bnei No’ach. Commenting on the view of Yesh Omerim explored previously in this series, who derived the institution of Dinim from the name of the Almighty Himself, Ran argues that the basic function of gentile courts is to administer strict justice so that the Fear of Heaven, in this case, in the sense of fear of consequences, will pervade society. In his comments on this Talmudic passage, Ran12 notes that this will specifically deter immoral behavior in the public square. It would seem that Ran, once again, does not understand the role of Dinim to be a means of creating a relationship between the Commander and those who are being commanded. If that were true, it would be just as important to prevent private misdeeds, yet for Ran, the focus on the public square, “SheLo Ya’avru Al HaMitzvot B’Pharhesiya,” “So that they do not transgress the 10 See commentary to Rambam Hilchot Melachim 9:14. 11 Avot 3:2. 12 ibid. commandments in public,” is perfectly in keeping with the utilitarian and pragmatic nature of the Mitzvot Bnei No’ach. In the final analysis, when one is dealing with one of the three pillars which enable the world’s basic functionality, Ha’Olam Kayam,13 compassion yields pride of place to strict justice, and to a form of Din unalloyed by any sense of forbearance characteristic of a paternal bond, even in the Divine sense of the term. 13 Avot 1:18, as opposed to Avot 1:2, which provides the triad which is the raison d’etre of the world’s existence, but manifestly not its modus operandi for fulfilling those desiderata.