by R. Gidon Rothstein
The end of Parshat Shofetim describes the eglah arufah ceremony, where someone is found murdered between cities (as portrayed in Murderer in the Mikdash, for those who have not yet read it). To atone for the insufficiently safe roads, the nearest city enacts breaks a heifer’s neck in a riverbed, what the Torah prescribed. Among the many questions one could raise, Abarbanel had wondered about its placement here, in the middle of a series of discussions of war.
People and Trees
Unsatisfied with Abarbanel’s or others’ answers, Kli Yakar draws our attention to Sotah 46a, where R. Yochanan b. Sha’ul links the eglah, which has not had offspring, the place, a riverbed that has never been plowed or sown, and the victim, who will not again be able to have children.
Were that the whole story, there should be no eglah arufah for someone too old or unable to have children, yet no such distinction is made. The Gemara therefore reads it in terms of mitzvot, the victim will no longer be able to produce those kinds of fruit.
Either of those fortunately connects this passage with the one just before, the prohibition against cutting down fruit trees as part of a siege. In 20;19, the Torah justifies the rule by saying ‘ki ha-adam etz ha-sadeh, for is a tree of the field a man,” to be able to flee the battlefield/ siege? Were our eglah arufah about ending the person’s bearing children, it would belong here, right after the Torah prohibited cutting down fruit trees, because we are supposed to preserve productivity, of fruits and of babies.
Of course, we don’t end up thinking it is about biological offspring. Fortunately, Ta’anit 7a read the verses about fruit trees in terms of Torah scholars, those Torah scholars who have good “fruit” are worth attending, those whom we know do not have edible fruit we can cut off, not study with. If the Torah was concerned about our making sure not to cut off a Torah scholar who is a source of wisdom, it then wants us to know the same is true of all who produce mitzvot, shown in the eglah arufah ceremony.
He closes with wonder that other commentators had not seen something so obvious, the Torah inserts the eglah arufah ceremony here, in the middle of discussions of war, because it amplifies a point the siege rules had made: we are to protect that which bears fruit, of valuable Torah knowledge as well as of mitzvot, both in war and by keeping our roads free of murderers.
The Mandatory Call to Peace
One of the war rules earlier in the series, 20;10, required Jews to call for peace before attacking a city [it wasn’t a peace many would accept, since—if they weren’t Canaanite cities–they had to agree to keep the Noahide laws and offer physical and financial service, or flee. But it was something]. Chatam Sofer is reminded of II Shemuel 20;19, where Yo’av lays siege to Avel Beit Ha-Ma’acha for harboring Sheva b. Bikhri, a rebel. In the text, a wise woman comes to the walls to convince him not to destroy the city.
Bereshit Rabbah 99;9 identifies here as Serach the daughter of Asher, and thinks she challenged his failure to offer them a peace option (I think the Midrash infers it from her calling herself shelomei emunei Yisra’el, the peaceful believers of Israel, the idea of peace her way of telling off Yoav for not offering peace). Were the Midrash correct, however, we should have seen some answer by Yo’av, which we do not.
Chatam Sofer offers one. The call for peace comes only in a state of war, an army attacking a city in order to conquer it. That is what Yoav means when he tells her he has no interest in the city only in Sheva b. Bikhri. He does not need to call out for peace, because he hasn’t come for war.
[A subtle distinction, because had the city refused to hand over Sheva, it seems Yo’av would in fact have conquered it. Since it wasn’t his goal, he wasn’t required to call out for peace. He doesn’t explain why that would be; I think it might be that when it’s part of a war and conquest, the victor will take over the city and impose himself on it. Here, even had Yoav conquered the city, he would have taken Sheva and left, so there were no long term consequences for which he had to offer an alternative.]
The Impossibility of a Specific Mitzvah Demand to Appoint a King
I had heard people quote Netziv’s reading of 17;14 before I ever saw it, and it bothered me. People would say he said the mitzvah to appoint a king is voluntary, similar to the mitzvah to kill animals a certain way if we want to eat their meat. When I finally read it, I found that’s not what he said [although, full disclosure, I have made this point to others and they have insisted their original reading of Netziv is the correct one. I guess you’ll have to check me on this yourselves.]
The verse speaks of appointing a king only after the people ask for one, giving some readers the sense that it was voluntary, that if the Jews never ask, there is no mitzvah. If so, it would like shechitah, killing animals a certain way to make them kosher, where it’s only a mitzvah if we want meat. But, says Netziv, it’s well known there’s a mitzvah to appoint a king, Chazal are clear it is not like shechitah.
Here’s his explanation: monarchies differ greatly from representative democracies, and some societies cannot tolerate a king, where others are rudderless without one. The force of a mitzvat aseh cannot turn a society from one kind into another, because how the society works at a whole quickly affects issues of life and death, and saving lives pushes aside Torah obligations.
Before I summarize the next bit, I want to stress I am close to translation here; it is so easy to reject my reading as the reading I want, I am doing my best to put in all his points. He says it is therefore impossible to command us to appoint a king, as long as the people are unwilling or unable to agree to bear the yoke of a king, especially if they see societies around them functioning well or better with a democracy.
Only when the people realize they want a king can the Sanhedrin then appoint one.
A Mitzvah We Must Be Ready For
I think he’s making a remarkably subtle point, that gets lost in people’s rush to find a rabbi who will tell them they need not contemplate a monarchy. When the Torah tells us to shake a lulav on Sukkot, our mental state mostly does not matter, as is true for many mitzvot. Sure, we may not feel like putting on tefillin on a particular morning, but it’s not going to destroy our lives to submit and listen, so we just have to do it.
Not so with forms of government, Netziv is saying; there, if we try to impose it on our society—even if we all kind of think we should—it won’t work until we’re ready. You might think—as many have—he’s really saying we never need to get ready, except he goes on to say it is impossible to relegate this mitzvah to shechitah status, because then why did the Torah say we should appoint this king after we conquer the Land? We’re allowed to have a king before, such as Yehoshu’a, whom Rambam assumed had the status of a king.
Then he says: “Rather, you must say it is a mitzvah, just not one incumbent on the Sanhedrin until the people say they want one.” It’s why there was no king the whole time the Mishkan was in Shiloh, because the people were not moved to ask for one.
The response I get from people is that, sure, but there’s also no need for the people to want one, in Netziv’s view. To which I say, that’s not what a mitzvah is. He emphasizes there is a mitzvah, just not one we can fulfill until we are ready. I think we know this idea from other mitzvot, like the mitzvah to fear God. While there is a higher level of the mitzvah, it’s impossible to command, because people aren’t ready for it. But we’re supposed to do our best to get ready. Here, too, I understand Netziv saying that as well: you can’t get a king—a mitzvah to have—until you’re ready for one.
Killing a person, making war on many, how to have a king to lead those wars, in our comments for Parshat Shofetim.