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Brotherly Love

Shoftim (Deuteronomy 16:18-21:9 )

by Rabbi Ozer Alport

In the event that a set of witnesses is found to be lying and conspiring through the testimony of a second set of witnesses who claim that the first set were in a different location at the time of the alleged incident, the court punishes the first set by inflicting upon them the punishment they would have brought upon the defendant through their testimony (Deut. 19:19). Rashi writes that this law only applies in the event that their conspiracy is discovered before the defendant is punished. If he has already been killed as a result of their testimony, they are no longer to be put to death.

In his commentary on the Talmud (Makkos 5b), Rashi explains that this law is derived from the Torah's wording, "as he conspired to do to his fellow." A person is only considered one's fellow as long as he is alive. Once he has been put to death, he is no longer called one's fellow, and this law is no longer applicable.

The Ritva questions Rashi's derivation by pointing out that the Torah uses the word "fellow" in reference to the dead both when discussing the mitzvah of yibum (Deut. 25:6-7) and in reference to Nadav and Avihu after their deaths (Leviticus 10:4).

The Rashash (Sanhedrin 10a) defends Rashi's explanation by suggesting that the word has two different connotations: a familial relative, and a "brother" with whom one is united through a common obligation in mitzvot. The difference between them is that while the former is appropriate after death, which doesn't negate a familial connection, the latter is only applicable as long as both parties are alive, as the Talmud (Shabbos 30a) teaches that a person becomes exempt from mitzvot after he dies.

In light of this explanation, it is perfectly appropriate for the Torah to use the expression "fellow" in conjunction with the mitzvah of yibum, which applies only to a person's brother. This term is also fitting to be used in association with the deceased Nadav and Avihu when discussing them with their cousins Mishael and Eltzaphan, as this bond wasn't broken through death.

Our verse, however, is discussing the laws of conspiring witnesses and their scheme to falsely punish "their brother," the defendant. Since there is no familial relationship between the parties, it can only be referring to their common obligation in mitzvot. If the verse refers to the defendant as their brother, this law can only be applicable when he has yet to be punished and is still alive, thus providing a clear source for the ruling of the Talmud in Makkos, exactly as Rashi explained.

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In listing the people who are permitted to return home from the battlefront, the Torah includes one who is afraid and weak-hearted (Deut. 20:8). Rashi explains that this refers to a person who is fearful that the sins which are in his hand will cause him to die in the battle. It is difficult to understand the use of this peculiar expression. In what way is it possible for sins to be in a person's hand more than they are in his heart or soul?

Further, one of the examples given (Talmud - Menachos 36a) of such is a sin is a person who speaks between putting the tefillin on his arm and placing the tefillin on his head. Since this isn't from the more severe sins which require Yom Kippur to effect forgiveness, why doesn't he merely confess and repent his sin, which will effect immediate forgiveness and allow him to remain and fight?

Rabbi Shalom Schwadron suggests that the Sages specifically referred to the sin as being "in his hand" to hint that he has yet to relinquish his improper actions and is still figuratively holding on to them. The reason that he is unable to simply repent his actions is that he doesn't want to! Nevertheless, although he is unwilling to admit the error of his ways and correct them, he is still intellectually cognizant of their impropriety and therefore fears the consequences of placing himself in the danger of war.

Although he recognizes that his actions are inappropriate and could lead to his death, he is still unable to release them from his hand and properly correct his ways due to the tremendous force of habit. As we begin the difficult work of honestly evaluating ourselves and attempting to improve and grow throughout the month of Elul, the first step is to understand that one of the greatest weapons in the yetzer hara's arsenal is the power of habit, a recognition which will allow us to loosen our grips and completely release the sins from our hands.

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When a corpse is found in the field, the elders of the nearest city are required to bring a heifer to a valley and slaughter it with an axe (Deut. 21:4). They must then announce (21:7) that they didn't spill the blood of the deceased.

Rashi quotes the Talmud (Sotah 45b), which explains that the Sages clearly aren't suspected of cold-blooded murder, but rather they must testify that they didn't see this wayfarer leaving their city and allow him to continue without escorting him and providing him food. In what way would their providing a traveler with food protect him from a would-be murderer?

The Malbim answers that their declaration refers not to the victim but to the murderer. If they allowed him to leave their community without giving provisions for his journey, he may have been forced to murder to acquire food, and they bear partial responsibility for his actions.

The Maharal (Chiddushei Aggadah - Sotah 45b) explains that when a person is part of a larger community, he is able to benefit from their accumulated merits. This may protect him even if his own merits are insufficient. Escorting him on the beginning of his journey and giving him food allows him to maintain his link to the community even when he is traveling on his own.

The Ibn Ezra suggests that if the murderer sees his intended victim being escorted by the community, he will be afraid to attack somebody who has so many friends who could take revenge against him.

The Darkei Mussar questions this explanation, as the mitzvah of escorting a guest applies only to the first four cubits (6-8 feet) of his journey, and perhaps the murderer only saw his victim after this time. Instead, he answers that if the hosts properly performed the mitzvah of hosting and escorting their guest, an angel would have been created as a result of the mitzvah which would protect the traveler on his journey.

Finally, the Alter of Kelm explains that if the townsmen escort the guests and provide him with food, he will feel important and cared about. His increased self-confidence will allow him to fight against attackers with greater strength and to successfully fend off potential killers.

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