The Noachide Law of Justice
[I found another interesting article about the law of Dinim or Courts or Laws and thought I would share it.]
by Rabbi Aaron Ross, from Chabura-Net. The web address of the original article is http://www.chaburas.org/noach.html.
The gemara in Sanhedrin 56a tells us that the Bnei Noach (a term that generally refers to the nations of the world other than the Jews) were given seven commandments – not to kill, not to have illicit relations, not to worship idolatry, not to steal, not to defame the name of God, not to eat a limb off of a live animal, and “dinim.” The last commandment literally means “laws” or “just laws,” and it is the exact definition of this law that is the focus of our Chabura this week.
In analyzing this law, we must first be aware of the main section in the Torah which involves the laws of Bnei Noach. In Bereishit 34 we are told the story of Dina, who was kidnapped and raped by the Canaanite prince Shechem. When her brothers Shimon and Levi heard what had happened, they convinced Shechem to convince his subjects to circumcise themselves, ostensibly for the purpose of joining the two nations, and thus allowing Shechem to keep Dina. When the inhabitants of the city had all agreed to do so and were in considerable pain following their operations, Shimon and Levi killed every male in the city and took back Dina. Yaakov, their father, horrified and what occurred, rebuked his sons for their actions, both at this point and in his final words and blessings to his children. For our purposes, we want to assume that Shimon and Levi acted within the law, and thus we must find some reason why they had the right to wipe out the town of Shechem, while at the same time finding a reason why Yaakov found fault with their actions.
Rambam (Hil. Melachim 9:14) claims that the commandment of dinim refers to an obligation for Bnei Noach to establish courts in every city and jurisdiction for the purpose of enforcing the other six laws. Thus, the people of Shechem were held responsible for the fact that they watched their prince steal Dina and did nothing to stop him. The Chasdei David sharpens this point by noting that Rambam seems to place this obligation of justice on everyone and not just on the rulers or the judges. Several Rishonim question this last point, asking why the judges would not have been the ones responsible, since it was their place to carry out the laws and punish Shechem. Ran answers that they had a status of oneis, i.e. they could not prosecute him since his position gave him power over their lives. The Ohr HaChaim invokes the general principle that a king is not judged (see Sanhedrin 18a), and thus while the judges were free from their obligation based on this technicality, the people still had an obligation to stop Shechem from abducting Dina. Rav Shach, in his Avi Ezri, notes on this point that the real commandment of dinim is “to judge,” and the appointing of judges is merely a suggestion as to how this commandment can be carried out. As such, the judges were mere objects of the commandment and the obligation was in fact incumbent on all of the people.
Ramban, in his commentary to Genesis, strongly objects to the view of Rambam. He claims that if the view of Rambam were correct, then Yaakov himself should have killed the people of Shechem (a Ben Noach who violates one of his seven laws incurs the death penalty in all cases) and certainly should not have rebuked his children for their actions. Thus, says Ramban, the commandment is actually of a different nature. In reality, the commandment of dinim is an expansive one that includes many aspects of the civil code, and parenthetically it includes the need to set up courts. However, under this construct the people of Shechem did not really violate this commandment. Rather, Shimon and Levi used the fact that the people of Shechem were idolaters as a pretext for killing them, and Yaakov’s opposition stemmed from the fact that he did not feel that it was the duty of his children to be the police force for the world.
How do we approach this argument between Rambam and Ramban? Beyond the fact that each one has to design their own way of interpreting the story of Dina, is there a deeper level to their argument, a level that will bring us to a better understanding of the nature of this law? There obviously is, and to see it in a clearer light, we must first highlight the differences between their opinions a bit more. First, we must ask if there is a specific commandment for Bnei Noach to appoint judges. According to Rambam, that is the whole commandment of dinim, while according to Ramban there is no such commandment, but rather it is merely a logical outgrowth of the need to have a civil code. The reverse of this is that according to Rambam, there is no obligation for Bnei Noach to have an enforceable civil code, but rather the judges are charged with protecting merely the other six laws. The Lechem Mishne objects to this, showing that this view of Rambam is inconsistent with much of the continuation of the gemara in Sanhedrin.
A second approach is outlined by Ramo in a responsa (#10). He claims that both sides agree that there is a responsibility to judge monetary matters and civil issues. However, for Rambam, this falls under the heading of the prohibition to steal, while for Ramban this is the commandment of dinim. He bases this analysis on the argument in the gemara over which word in Bereishit 2:16 serves as the basis for the law of dinim. According to the view that the word “va-yetzav” (and He commanded) is the source, the law of dinim is merely for Bnei Noach to have a court system, but what laws they enforce will be decided, to some extent, by their sovereigns. However, according to the view that the word “Elokim” is the source, the commandment includes all of the Jewish civil code as well, as that word has the implication of Hashem as judge. The Chatam Sofer (responsa 6:14) rejects this notion of Ramo as irrelevant to the debate. He claims that according to the view of Rambam, the people of Shechem were liable to the death penalty even though there was no court that could actually carry out that punishment. Thus, Shimon and Levi were theoretically justified in their actions, and Yaakov’s rebuke stemmed from his disagreeing to their assumption of the role of enforcers.
What, then, is the actual commandment of dinim? Taking the views of the Avi Ezri and the Chatam Sofer together, we arrive at the notion that there is a mitzvah for Bnei Noach to judge, and if they fail to carry out this commandment they are subject to the death penalty. What is the nature of this law? According to Meiri, Bnei Noach are charged with preventing perversion and corruption in society and thus with the upkeep of the world. Rashi refers to their obligation as one of “justice.” The key here, as explained by the responsa Sho’el U’Meishiv, is that while they have this responsibility, and while they can perhaps be punished for failing to execute it, their failure to do so does not create any liability in Heaven. What is meant by that is that when a Jew sins, not only does he have to face certain delineated consequences in this world, but his sin also makes an indelible mark on his soul and his entire existence. A Ben Noach does not have to deal with such metaphysical notions – he is charged with safeguarding the world, and his not doing so hurts him only insofar as he has “let the world down.”
Using this model, we can perhaps explain several differences between the laws of Bnei Noach and those of the Jews. The first is with regard to fines. While fines are, in one sense, monetary civil matters, they are treated differently even within Jewish law. For example, a court outside of the Land of Israel may not enforce any of the fines laid out in the Torah. In a similar vein, even if Bnei Noach are obligated in our civil laws, they are not obligated to enforce these fines (e.g. paying 50 silver pieces for rape, paying four times the value of a stolen and slaughtered ox, etc.), as the fines are not “natural” monetary obligations, but exist rather as decrees of Hashem that apply only to the Jews when they are in their privileged position of being in Israel. The second difference is one pointed out by the responsa Machaneh Chaim. The gemara in Sanhedrin notes that their are various laws of courtroom procedure that do not apply to Bnei Noach, such as the requirement for two witnesses, the restriction against a relative testifying, and so on. Why is this so? If these statues exist seemingly for the purpose of guaranteeing as fair a trial as possible, why would we exempt Bnei Noach from them? Again, we must realize that the obligation of a Ben Noach in dinim stems ultimately from the power that their ruler has and not directly from Hashem. As they lack that “higher authority” to answer to, we can be lenient with them in defining such aspects of their requirements.
A third difference is the subject of debate between the Yerushalmi and the Chatam Sofer. The Yerushalmi claims that a Ben Noach judge may not be bribed, just as a Jewish judge may not be. The Chatam Sofer offers a fascinating explanation as to why the opposite may be true. He claims that if a Jew is on trial before a non-Jewish judge and he sees that the judge may wrongly sentence him to death, he may bribe the judge to reverse the decision. Why is this so? Since the obligation of the non-Jew is to execute proper and correct justice, then by letting him hand down his wrong decision, the Jew is allowing the judge to violate one of the seven commandments, i.e. that of dinim. Thus, to save him from this violation, the Jew may bribe the judge (note: as far as I know, we do not follow this view, so please do not start bribing judges with reckless abandon).
Finally, we can explain why a Ben Noach is punished with death for violating any of their commandments, whereas a Jew who performs a similar infraction does not always receive such a harsh punishment. Since the Ben Noach is given these commandments to uphold the world, by not following them he has contributed to the breakdown of society and the world at large. As such, he has already removed himself from the world, and his responsible position in it, and the resultant death penalty is merely a natural outgrowth and expression of his actions.