The Divinity and Fallibility of the Beit Din:

Nahmanides on Deuteronomy 17:11

When a court reaches an obviously wrong decision, those who see the mistake may

question whether to trust the court in all its other decisions before and since that one. Such a

questioning process can seriously disrupt the social order that court was established to provide.

To some, the loss of order is unthinkable and must be avoided, even if defending the court leads

to compromising their definition of what is right, or to simultaneously holding contradictory

beliefs. Nahmanides’ comments on Deuteronomy 17:11 and two other verses deal with just this

issue. The comments are all marked by a struggle to reconcile the ideal of a perfectly just court

with the practical reality that judges sometimes make mistakes. Nahmanides asserts that his ideal

exists—that the Beit Din, the assembly of rabbis who serve as judges over their community,

actually receives God’s guidance and reaches its decisions according to God’s will. Nahmanides

seems to be aware of some of the problems associated with asserting that ideal, but never fully

addresses them in his commentary on the Torah. Instead, he attempts to reassure his reader that

God governs the world justly, but in doing so he presents a disturbing picture of justice.

In Deuteronomy 17:8-11, Moses instructs the Israelites that if ever their local judges find

a case too difficult to judge, they should take the matter to the superior court, where those who

are presumably more qualified to judge difficult cases will examine the matter and deliver a

decision. Verse 11 warns the people that once they receive a decision from the higher court, they

must do whatever they are commanded, and they must be precise in their obedience: “Act in

accordance with the law that they [that is, the priests, the Levites, and the judges of that day, per

Deut. 17:9] teach you, and in accordance with the rule that they say to you. Do not deviate from

the thing they tell you—neither to the right nor to the left.”1

The significance of this verse would be hard to overestimate. In Jerusalem, Babylon, and

other nearby areas where Jewish communities flourished in the 10th

and 11th

centuries, during the

height of Karaism’s popularity, this verse could be used to support Rabbanite claims. One of the

points on which the two groups disagreed was the question of who was authorized to interpret

the Torah. Rabbanites held that those rabbis who sat on the Beit Din had the authority to rule on

court cases according to their interpretation of the Torah, and that they had the power to make

decrees which all Jews were obligated to obey, while Karaites held that the task of interpreting

Torah was up to each individual.2 Rabbanites could employ Deuteronomy 17:11 to support their

argument that it was the religious authorities, and not each individual, whom God has authorized

to determine what each Jew must do.

The verse is also one of the scriptural foundations of the problem which the Jerusalem

Talmud’s Tractate Horayot considers: the tractate begins with the story of a high court issuing

an erroneous ruling, permitting what should have been forbidden, and then considers what must

be done in light of the error.3 The fact that Deuteronomy 17:11 commands the people to obey

their high court’s rulings is of course a complicating factor in the matter.

Furthermore, the verse allows observant Jews to make sense of the fact that they recite a

blessing saying that God commanded them to perform certain rituals, such as reading the book of

Esther on Purim and lighting candles on Hanukah, which became common practice long after

Moses and the other prophets who spoke for God fell silent. Even though it was the human

1 Rabbi Nosson Scherman, ed., Tanach: The Stone Edition; The Twenty-Four Books of the Bible Newly Translated

and Annotated, 7th ed. (Brooklyn: ArtScroll Mesorah Publications, 2009), 470, my translation. 2 Richard D. Bank and Julie Gutin, The Everything Jewish History and Heritage Book: From Abraham to Zionism

(Avon: F+W Media, Inc., 2011), 184. 3 “Masechet Horayot,” in Talmud Yerushalmi (Jerusalem: The Academy of the Hebrew Language, 2001), 1411-32.

religious authorities of the day (rather than someone explicitly speaking for God) who gave those

commandments, according to this interpretation of Deut. 17:11 God endorsed not only the

decrees of judges, priests, and Levites of that time but also all later religious authorities’ future

decrees, as if he were writing a blank check for their descendants to cash. This verse thus allows

Judaism to do two things crucial to maintaining its own vitality. First, it allows the religion to

resist the threat of fragmentation by emphasizing that all power to determine correct Jewish

practice belongs in the control of one centralized body. And second, it allows Judaism to

establish new rituals in response to (and in an effort to make religious sense of) the current

situation of Jewish life, without foregoing the sense of shared cosmic significance that comes

from believing that how one’s community lives is in accordance with God’s will.

Thanks to the great breadth and depth of his education, Nahmanides would have been

aware of the historical significance of Deuteronomy 17:11 when he wrote his Torah commentary

in the latter half of the 13th

century, toward the end of his life. But while his education in

Talmud, Kabbalah, Christian theological works, and secular sciences and philosophy gave him a

broad range of knowledge,4 his Torah commentary on the whole shows a preference for reading

the text at once literally and mystically.5 Nahmanides saw the Torah as the source of all truth,

including prophecy about the future and revelation of the names of God6. He seems to have

revered Rashi, and he mimicked Rashi’s method of letting his remarks spring from individual

words or phrases in the Torah text, but he sometimes disagreed with Rashi’s choice to explain

the text in ways inconsistent with existing Jewish tradition—for Nahmanides, tradition held

4 Fred Skolnik, Angela Kim Harkins, and Franklin T. Harkins, eds., Encyclopedia Judaica, 2nd ed. (Jerusalem: The

Jerusalem Publishing House/Thomson Gale, 2007), s.v. “R. Moses Ben Nahman (Nahmanides/Ramban),” 12:779. 5 Ephraim Kanarfogel, “On the Assessment of R. Moses Ben Nahman (Nahmanides) and His Literary Oeuvre,”

Jewish Book Annual 51 (1993): 163. 6 Marcus Jastrow and Isidore Singer, et. al., eds., Jewish Encyclopedia (New York: Funk and Wagnalls, 1906), s.v.

“Moses Ben Nahman Gerondi (Ramban; Known Also as Naḥmanides and Bonastruc da Porta).”

highest authority.7 Similarly, Nahmanides respected Maimonides, but often disagreed with him

as well: while Maimonides took as given that the Torah cannot contradict known truths of

natural science or philosophy (and if it appeared to do so, Maimonides would find another way

to interpret the text—usually metaphorically—so that its teachings were in harmony with his

understanding of reality), Nahmanides began with the assumption that reality cannot contradict

the teachings of the Torah, and if it appeared to do so, it is one’s understanding of reality that

must be reexamined.8 Perhaps Nahmanides was so committed to his premise that traditional

interpretation of scripture is unimpeachable that he was driven to resolve the problems he

encountered with scripture’s plain meaning by seeking another understanding of the world.

Against this backdrop, let us look at the first section of Nahmanides’ commentary on

Deuteronomy 17:11. He begins,

“Neither to the right nor to the left,” “…even if he [that is, the judge] says to you regarding right

that it is left or regarding left that it is right…”— the words of Rashi. And its essence is this: even

if you shall think to yourself that they err, and the matter is as obvious in your eyes as if you were

distinguishing between your right and your left, you shall do as they command.”9

Nahmanides begins this paragraph by citing the final words of Deut 17:11, which will be the

focus of his commentary. He then quotes the first half of Rashi’s commentary,10

noting that

Rashi is in turn transmitting Sifre on the verse.11

Rashi is responding to the words “neither to the

right nor to the left”, which are more literally translated from the Hebrew as “right and left.”

Assuming the Torah is maximally meaningful, that it contains no mistakes and uses no words

7Fred Skolnik, Angela Kim Harkins, and Franklin T. Harkins, eds., Encyclopedia Judaica, 2nd ed. (Jerusalem: The

Jerusalem Publishing House/Thomson Gale, 2007), s.v. “R. Moses Ben Nahman (Nahmanides/Ramban),” 12:780. 8 Ibid.

9 Torat Hayyim: Deuteronomy (Jerusalem: Hamakor Press, 1993), 151, my translation, in consultation with the

translations of Chavel and ArtScroll. Nahmanides, Ramban: Commentary on the Torah trans. Rabbi Dr. Charles B. Chavel (New York: Shilo Publishing House, Inc., 1976), 5:206-07; Nahmanides, The Torah with Ramban's Commentary Translated, Annotated and Elucidated (Brooklyn: ArtScroll Mesorah, 2010), 416-419. 10

Rashi’s remarks on Deut 17:11 continue, “…so all the more [are you obligated to obey him] when he says to you that right is right and left is left!” Torat Hayyim, 151, my translation. 11

In full, Sifre’s remarks on these words read, “Right and left: even if they make you see with your own eyes regarding right that it is left and regarding left that it is right, obey them.” “Shoftim 154,” in Sifre On Deuteronomy (New York: The Jewish Theological Seminary of America, 1969), 207, my translation.

unnecessarily,12

Rashi asks what new information the Torah conveys through the words “right

and left.” If “right and left” is merely a rhetorical flourish—if the Torah is simply saying one

must neither deviate to the right nor the left—then the words “you shall not deviate” alone would

have been sufficient. So, Rashi reasons, “right and left” must mean something else.13

His

resolution is that “right and left” strengthens the command not to deviate from obedience to

rabbinic decrees by saying, albeit obliquely, that the commandment would apply even in cases

when we might have thought it would not: that is, even if the judges are as wrong as someone

who says that right is left and left is right, still God commands the people to obey them.14

Nahmanides continues with a sympathetic representation of one who may be troubled by

such an obligation, but he warns that person not to follow his or her own impulses, but rather to

remember that God is in charge and it is God’s will that the judges be obeyed.

Do not say, “How can I eat this completely forbidden fat?” or “How can I kill this innocent man?”

but say, “Thus the Lord, who commands the commandments, commanded me: I must do all his

commandments in accordance with all that those who stand ‘before God in the place that God will

choose’ [Deut. 16:16] will teach to me. It was according to the meaning of their opinions that he

gave to me the Torah, even though they may err.”15

Two points are worth noting here. First, mitzvot are sometimes divided into those regulating

behavior between a person and God and those regulating behavior between people. Nahmanides

has given one example for each of these two categories: dietary rules are between a person and

12

James Kugel, Studies in Ancient Midrash (Harvard University Center for Jewish Studies, 2001), 18. 13

Nahmanides, The Torah with Ramban's Commentary Translated, Annotated and Elucidated (Brooklyn: ArtScroll Mesorah, 2010), 416. 14

In reading Deut. 17:11 as obligating people to obey even an erroneous judgment, these three texts—Sifre’s, Rashi’s, and Ramban’s—oppose an opinion found in the Jerusalem Talmud’s Tractate Horayot 2b, which asserts that people only need obey the judge when he says right is right and left is left. This opposing opinion appears again on 45b of the same volume, as Schechter Schechter discusses in Studies in Judaism, Vol. 3: “The passage on Sifre plays upon the verse in Deuteronomy (17.11), where it is said: ‘Thou shalt not diverge from the sentence which they tell thee, to the right hand nor to the left,’ or, as the literal translation of the Hebrew idiom would run, ‘right and left.’ Now, in Yerushalmi Horayot 45b we read: ‘We might believe that we were bound to obey the Sanhedrin even if they told us of the right that it was left, and of the left that it was right; to prevent this, the Law says: “when they tell you right and left” ’. Here, by a characteristically Talmudic manipulation of the words, the text is supposed to mean: ‘Only when they tell you that right is right, and left is left are you to obey them, but not otherwise.’” Schechter Schechter, Studies in Judaism (Piscataway: Gorgias Press LLC, 2003), 3:172. 15

Torat Hayyim, 151.

God; killing is between people. We might have thought that the commandment to obey even an

erroneous judgment applies only to actions between a person and God, and not to actions

between people, and especially not to whether an executioner should kill someone whom a judge

wrongly convicted of a capital offense. If the judges are in error and the people obey them

anyway, thereby wronging God (e.g. by eating forbidden fat), God can forgive it—God knows it

was only done for the sake of obedience to another one of God’s commandments. But a person

who is wronged will not necessarily be so forgiving. Thus we might have thought that if the

judges erroneously decree that a person should, as in Nahmanides’ example, kill an innocent

man, that the one commanded to kill would not be required to do so if he sees the judges’ decree

as erroneous. But Nahmanides tells us otherwise. So certain is he that the god we know and trust

always endorses the judges’ decrees, he would even have an executioner execute someone he

believes to be innocent for the sake of seeing that the judges are obeyed.

Second, Nahmanides further strengthens this commandment’s force by saying the Torah

itself was only given to us on condition that we would interpret it according to the judges’

teachings (rather than our own interpretations, as the Karaites might have said), even when the

judges are wrong. Common people were never meant to draw their own conclusions about the

Torah, nor may they decide for themselves whether they ought to obey a judge’s decree.

Nahmanides now brings support for his claims by citing a related Talmudic text.

And this is like the story of Rabbi Yehoshua and Rabban Gamliel on the Yom Kippur that

occurred according to Rabbi Yehoshua’s calculations (Rosh Hashanah 25a).16

Nahmanides is referring to a famous dispute: two witnesses came to R. Gamliel, the head of the

Sanhedrin at that time, and they declared to him that they saw the new moon (meaning the month

of Tishrei had begun and the day when Yom Kippur would fall could be calculated accordingly).

16

Torat Hayyim, 151.

But R. Yehoshua rejected their testimony. He held—apparently correctly—that the new moon

appeared on the following day. Thus R. Gamliel and R. Yehoshua disagreed about when Yom

Kippur would fall, and R. Gamliel, seeking to quash public doubt in his authority, ordered R.

Yehoshua to appear before him on the day R. Yehoshua believed to be Yom Kippur, with his

staff and money in hand, things no observant Jew would carry on a holy day. R. Yehoshua is

distraught that he must desecrate the day, but his peers convince him to obey R. Gamliel’s order.

First, R. Akiva comes to him and says, “I can prove that all which R. Gamliel has done is

proper, for it is said: ‘These are the feasts of the Lord, holy convocations which ye shall

proclaim,’ either at their proper time, or not at their proper time, only their convocations are to be

considered as holy festivals.” According to R. Akiva, God’s command to proclaim when the holy

days will be does not include a command to get the timing exactly right in relation to the moon;

what determines the timing of the holy days is their announcement by the proper authority.

Second, R. Dosa b. Harkhinas warns R. Yehoshua of the chaos that would ensue if this

law were not in place. He says, “If we are to reinvestigate the decisions of the Beth Din of R.

Gamliel, we must also reinvestigate the decisions of all the tribunals of justice which have

existed from the time of Moses till the present day; for it is said [Ex. 24:9] Moses, Aaron, Nadab,

Abihu, and seventy elders went up (to the Mount).” R. Dosa argues that whether right or wrong,

this process has been in use since the time of Moses; questioning it now would cast doubt on

every judgment from then until now, and the public confidence in (and obedience to) rabbinic

decisions would be lost. The mishna explains, “Why were not the names of the elders also

specified? To teach us that every three men in Israel that form a Beth Din are to be respected in

an equal degree with the Beth Din of Moses.” This explanation answers R. Dosa’s implied

concern reassuringly: not only would it be disastrous to question R. Gamliel’s judgment; it is

also needless: his decision has the same force as the unquestionable decisions of Moses.

When R. Yehoshua appears before R. Gamliel with staff and money in hand, R. Gamliel

greets him warmly and says, “Enter in peace, my master and disciple! My master—in

knowledge; my disciple—since thou didst obey my injunction.”17

That R. Gamliel calls R.

Yehoshua his master in knowledge seems to confirm our earlier suspicion that R. Yehoshua was

correct in his calculation, and it further suggests that R. Gamliel knew as much. But as we have

learned already, that doesn’t matter. The mishna has taught us that when it comes to making

these judgments, knowing the “right” answer matters less than holding the right authority.18

Nahmanides now explains why one unified body must determine Jewish law:

The necessity of this mitzvah is very great, because the Torah is given to us in writing and it is

known that people don’t always agree about newly-arisen issues—and the next thing you know,

the disagreements will increase and you will make the Torah into multiple Torahs! So scripture

decided that the judgment is, for us, whatever is decreed by the great Beit Din that stands “before

God in the place that he will choose” [Deut 16:16], whatever they may say to us in explanation of

the Torah, whether he [that is, the judge] received his explanation from a witness who heard it

from the mouth of another witness in an unbroken chain going all the way back to Moses, who

heard it from the mouth of the Almighty, or whether they said their explanation in accordance with

17

Michael L. Rodkinson, ed., trans., New Edition of the Babylonian Talmud: Original Text, Edited, Corrected, Formulated, and Translated Into English; Section Moed (Festivals) Tract Erubin (Boston: New Talmud Publishing Company, 1903), 3:47-48. 18

Comparing this story with that of the oven of Akhnai in Bava Metzia 59 sheds new light on both. In the latter story, even though the oven was otherwise pure, the decree of a majority of rabbis effectively made it impure. In our story, even though R. Yehoshua may have been correct in rejecting the testimony of the witnesses, even though the new moon may not have been visible when they claimed it was, and even though Yom Kippur would have been one day later than R. Gamliel declared it to be had he been going strictly by the moon, nevertheless R. Gamliel had the power to make Yom Kippur occur according to his decree. His word, not the new moon’s appearance, determines which day is the holiest of the year. While in the story of the oven of Akhnai we might think of the majority of rabbis as representing the Jewish people as a whole, and their overrule of their sole opponent (who inappropriately supports his claim with miracles) as representing the end of God’s potentially arbitrary rule over the people and the beginning of their glorious empowerment to self-determine through reasoned argument, the story of the new moon shows us a different picture: God’s rule has been replaced not with the democratic process of reasoned argument among peers but rather with the rule of a governing body headed by one person who has absolute power in certain matters. It seems the Jewish common folk are still just as disempowered as they were before. God may have given the Torah, but not to them; as far as they are concerned, it remains as out of reach as if God had never met Moses on Sinai. On the other hand, the story of the oven of Akhnai reminds us that the shift from God’s direct rule over the Jews to the rule of the Beit Din is still a step toward the empowerment of the people: not everyone could sit on a Beit Din, but many people could, and that accessibility made Jewish religious government less like a benevolent dictatorship and more like an oligarchy.

the correct exegesis of the Torah text or its intention. Because it was through the lens of their

opinion that God gave them/us the Torah, even if, in your eyes, it switches right and left.19

Nahmanides warns us that if Jewish society does not maintain a centralized power base, it will

splinter into many Jewish societies, each one following its own interpretation of Torah in answer

to the new questions that the changing times have brought. (This passage could be a direct

defense of Rabbanism against the Karaite position, which rejects the attribution of special status

to rabbinical interpretations of Torah.) Whether the religious authorities give their answers based

on received tradition or their own interpretation, he says, their words are law because God has

put into their hands the power to determine how the Torah ought to be understood.

Note how insistently Nahmanides argues that God actively endorses the judges’

decisions. He says that “scripture decided” that the great Beit Din should have the power to make

decrees; he supports that claim by quoting Deuteronomy 16:16, reminding us that our governing

body stands “before God” in a place God chose; he says some of the top authorities’ decisions

come to us in an unbroken chain straight from God; and he suggests that God originally gave us

the Torah solely on condition that we would adopt only the authorized interpretations. It may be

that Nahmanides stresses so insistently God’s endorsement of the judges’ decisions because he

feels some anxiety about the audacity of this rule: it is no small thing to say that judgments are

up to the people in charge, whether or not they line up with the available evidence. The practical

argument—that if not for this rule, Judaism would splinter—may not be enough to meet his

idealistic standards. United though it may be, Judaism would risk losing its sense of holiness and

moral force if it could not claim that its legal code is in accord with the will of God.

Plenty of faithful Rabbanite Jews (not to mention Karaites and Christians) have

challenged that basic claim, or accused their Beit Din’s specific judgments of being obviously

19

Torat Hayyim, 151.

wrong. Throughout this passage, Nahmanides has been laboring to resolve the problem of, on the

one hand, needing Judaism to stay unified and, on the other hand, not letting it lose its claim to

morality and holiness. Thus far, he has been resolving that problem by pulling God’s will into

line with the decrees of the judges—he has been saying that God is ready to endorse whatever

comes out of the judges’ mouths. But that solution has problems of its own: it suggests that

God’s will may be lightly rooted and easily swayed in response to human notions, wrong or

right, an unacceptable suggestion for any who believe God and God’s laws to be absolute and

eternal. So Nahmanides concludes his commentary on this verse by adding the complementary

claim: it is not that God endorses whatever the judges may decree, but rather that God

determines their decrees. He writes,

So, you are all the more obligated to think that when they [that is, the judges] say something is

right, then it is right, since “the spirit of God is upon the ones who serve his holiness and He shall

not abandon his pious ones—they will be protected forever” [Ps 37:28] from errors and from the

stumbling block. And in the language of Sifre [Judges 154], “even if it is clear in your eyes

regarding the right that it is left and regarding left that it is right, hearken to them.”20

By virtue of the special status the judges have achieved through their piety, God grants them

special protection from error in a way that God does not protect the morally unexceptional.21

Thus we can trust that God guides the judges toward their decrees. In that light, Nahmanides’

final line—that we ought to obey them even if their judgments are clearly wrong in our eyes—

seems to mean less that we ought to do wrong (whether for the sake of keeping an orderly

society or for the sake of following God’s commandment to obey the judges) and more that the

judges are right and the error is ours, no matter how certain we may be that it is otherwise.

20

Torat Hayyim, 151-152. 21

This claim may be Nahmanides’ own idea; the line from Psalsm 37:28 does not specify that God will protect judges from error; it says only that God protects the pious from harm. For more on Nahmanides’ opinions on God’s treatment of the pious compared with his treatment of the morally average, see David Berger, “Miracles and the Natural Order in Nahmanides” (Columbia University Press, 1965), 1-16.

It is difficult to calculate which is more harmful to the health of a society, the

fragmentation that would result from everyone effectively writing his or her own Torah or

unchecked abuses of power that would result from privileging the judges’ decrees so heavily.

Hearing a multiplicity of voices, each opposed to all the others, might lead people to doubt that

there is any absolute truth at all, and as a result leaders might be unable to convince the masses to

follow them. But teaching the masses that God endorses the words of their leaders, even if they

err, both removes the best protection against corruption and tends to speed its arrival. That

Nahmanides opted for the second approach, as indicated by the final lines of his commentary and

his use of Sifre, suggests that he sincerely trusted that the judges did God’s will; else he might

have said more to protect against the abuses of power that this teaching promotes.

Yet we know Nahmanides could not have believed the high court to be infallible. To say

so would contradict the traditional interpretation of Lev. 4:13, which tells the Beit Din to bring a

sacrifice if it ruled erroneously. It also would contradict the mishna from Rosh Hashanah 25a

discussed above, in which R. Gamliel seems to acknowledge his own error by calling R.

Yehoshua his “master in knowledge.” And it would contradict Rashi’s interpretation of Deut.

17:11, which Nahmanides quotes in support of his own position at the opening of his remarks.22

To more fully understand Nahmanides’ view on the relationship between God and the

Beit Din, whether its judgments can be wrong, and if so whether people ought to obey them

anyway, we ought to consider his comments on two other verses. Writing on Deuteronomy

19:19, he says whatever happens to someone accused of a capital crime is a sign of God’s will:

22

The internal conflict in Nahmanides’ comment is suggested in Nahmanides, 419, fns 84-85. Paraphrasing the piece from Sifre Nahmanides quoted above, Artscroll says in fn. 84, “God directs the judges to the correct verdict, so that what appears to be a miscarriage of justice is invariably just a false appearance…” and in fn. 85, “Rashi’s language differs slightly: ‘Even if they tell you that right is left and that left is right,’ which implies that the decision is actually incorrect. Sifrei’s language, on the other hand, implies that it is only an illusion (‘before your eyes’) that the court’s decision is incorrect. This supports Ramban’s additional insight in [the section quoted on p. 8 above].”

Now, when two witnesses come and testify against Reuben that he killed a person and then

another two come and “refute” [their claim of] having been witnesses, Scripture commanded that

[the first pair] be killed for it was due to the merit of Reuben who was innocent and righteous that

this affair [of “the refutation”] came to pass. Had Reuben been wicked, liable to a death-penalty,

G-d would not have saved him from the hand of the court, as He said, for I will not justify the

wicked [Ex 23:7]. 23

The very appearance of two witnesses testifying to this hypothetical man’s innocence is

interpreted as a sign of God’s will that he should live. Since God wants to save him, the first two

witnesses (who testified against him) deserve to die. Nahmanides continues,

But if Reuben had already been killed we are to consider that whatever the first witnesses testified

against him was true, for he died due to his iniquity [Ezek 18:18]. If he were righteous, G-d would

not have left him in their hand, just as Scripture says, The Eternal will not leave him in his hand,

nor suffer him to be condemned when he is judged [Ps 37:33]. 24

Rather than think the late appearance of two witnesses ready to testify to his innocence reveals

that the Beit Din might have erred in its decision to execute him, Nahmanides instructs us to

assume the dead man must have deserved to die, else God would surely have intervened.

Moreover, G-d would not allow the righteous judges who stand before Him to spill innocent blood

for the judgment is G-d’s [Ps 1:17], and in the midst of ‘elohim’ (the judges) He judgeth [Ps 82:1].

Now all this indicates the high degree of the judges in Israel and is a promise that the Holy One,

blessed be He, agrees with them and He is with them pronouncing judgment [2 Ch 19:6]. This is

the sense of the verse, And both the men, between whom the controversy is, shall stand before the

Eternal [Dt 19:17], for it is before G-d that they stand when coming before the priests and the

judges and He will lead them in the right way [Gen 24:48].25

Here, Nahmanides labors to show that the Beit Din is in perfect unity with the will of God. This

passage offers a distilled expression of one of the views in Nahmanides’ commentary on Deut.

17:11, and it helps to explain his instruction that one should not think, “How can I kill this

innocent man?” While he does not say so in his remarks on 17:11, here he claims that anyone

who manages to die at the hands of the court must have been guilty, or else God would have

made sure he was saved. There is something both awe-inspiring and disturbing about the sheer

23

Nahmanides, Ramban: Commentary on the Torah trans. Rabbi Dr. Charles B. Chavel (New York: Shilo Publishing House, Inc., 1976), 5:234. 24

Ibid. 25

Ibid.

stubbornness with which Nahmanides defends the divinity of the court’s judgments, even if it

means dismissing the refutation and blaming the executed man for his own death.26

But Nahmanides’ comments on Numbers 11:16 reveal that he does indeed consider it

possible for the Beit Din to judge wrongly:

And Scripture further states, How long will ye judge unjustly? [Ps 82:2], thus admonishing [and

saying] that since the Glorious Name [Dt 28:58] is with them in giving judgment [2 Ch 19:6], how

can you not be fearful of Him when you pervert justice, as in the expression, the people that

provoke Me to My face continually [Is 65:3]. And it states furthermore [in that psalm], “I said: Ye

are godlike beings, and all of you sons of the Most High [Ps 82:6], for your number is the same as

the number of the princes above and the One Master, and so I said that you will sit in the seat of

G-d [Ez 28:2] on earth. But ‘k’adam’ ye shall die [Ps 82:7] – like the first man [Adam] who was

driven from his glorious place [in the Garden of Eden] and died, so will you [who judge unjustly]

be driven out of the House of G-d and die.27

Here, Nahmanides deals directly, and even sympathetically, with the problem of a Beit Din’s

injustice. Even so, the people whom the court governs are given no license to reject or disobey

the decision. Instead, God takes care of everything. When a judge judges unfairly, God drives

him out of the Beit Din and condemns him to death, just as Adam was driven from the garden

and condemned to mortality. In this way, presumably, God maintains the purity of the Beit Din.

But it is not clear how much time elapses between a judge’s unjust judgment and his divine

punishment—Nahmanides does not speak on that point in his comments on this verse, nor does

he say here whether one is still obligated to obey an unjust judge whom God has not yet expelled

from the Beit Din or killed for his injustice.

We can only assume that Nahmanides’ words on Deut. 17:11 still hold here: whether or

not the Beit Din’s decree is just, the people are to assume their judges speak for God and they

must obey them for the sake of the oneness of the Torah and the unity of the Jewish people.

Ultimately, God will punish the unjust judge. But amid all Nahmanides’ vigorous efforts to unite

26

Nahmanides’ comments on Ex. 21:6 are very like his comments on Deut. 19:19; he defends with verses from the Torah his claim that the Beit Din’s judgment is identical to God’s. See Nahmanides, Ramban: Commentary on the Torah trans. Rabbi Dr. Charles B. Chavel (New York: Shilo Publishing House, Inc., 1973), 2:347-48. 27

Nahmanides, Ramban: Commentary on the Torah trans. Rabbi Dr. Charles B. Chavel (New York: Shilo Publishing House, Inc., 1975), 4:103.

practical concerns with idealized assertions, he leaves unaddressed the execution of the innocent

man. While Nahmanides may well have believed that God invested the Beit Din with the power

to make Yom Kippur fall fewer than ten days after the appearance of the new moon, it is unlikely

that he or anyone else could believe the Beit Din has the power to render an innocent man guilty

(or at any rate to make it right for him to be executed). What Nahmanides implies instead was

that the Beit Din’s perceived divinity was of such paramount importance to God and God’s pious

servants that for the sake of preserving it, none of them ought to be concerned about the

execution of an innocent man.

Selected Bibliography

Kanarfogel, Ephraim. “On the Assessment of R. Moses Ben Nahman (Nahmanides) and His

Literary Oeuvre.” Jewish Book Annual 51 (1993): 158-72.

Kugel, James. Studies in Ancient Midrash. Cambridge: Harvard University Center for Jewish

Studies, 2001.

“Masechet Horayot.” In Talmud Yerushalmi, 1411-32. Jerusalem: The Academy of the Hebrew

Language, 2001.

Nahmanides. The Torah with Ramban's Commentary Translated, Annotated and Elucidated.

Brooklyn: ArtScroll Mesorah, 2010.

Nahmanides. Ramban: Commentary on the Torah. Translated by Rabbi Dr. Charles B. Chavel.

New York: Shilo Publishing House, 1970-1976.

Rodkinson, Michael L., ed., trans. New Edition of the Babylonian Talmud: Original Text, Edited,

Corrected, Formulated, and Translated Into English; Section Moed (Festivals) Tract

Erubin. Vol. 3. Boston: New Talmud Publishing Company, 1903.

Scherman, Rabbi Nosson, ed. Tanach: The Stone Edition; The Twenty-Four Books of the Bible

Newly Translated and Annotated. 1996. 7th ed. Brooklyn: ArtScroll Mesorah

Publications, 2009.

Schechter, Schechter. Studies in Judaism. Vol. 3. Piscataway: Gorgias Press LLC, 2003.

“Shoftim 154.” In Sifre On Deuteronomy, 207. New York: The Jewish Theological Seminary of

America, 1969.

Torat Hayyim: Deuteronomy. Jerusalem: Hamakor Press, 1993.