Parasha: Shoftim · Aliyah: Fifth (Hod)

ועשיתם לו כאשר זמם, "and you will do to him in accordance with what he had planned to do." Our sages in Makkot 5 derive from this word that if the party falsely accused had already been executed on the strength of this fabricated testimony, the court cannot execute the witnesses. This seems a problematical exegesis. Perhaps what the Torah wanted here by writing the word כאשר זמם was to incriminate the false witnesses for merely planning to testify falsely even if they had not yet done so before a court? Once the victim of such testimony has been executed the witnesses had become guilty not only of כאשר זמם, "as he [they, as the singular is used by the Torah for a halachically valid witness, i.e. a minimum of two witnesses. Ed.] had planned," but also of כאשר עשה, "as he had done!" In that case one could not use the argument that we do not condemn somebody to be executed based only on a logical argument, i.e. if we execute them even if they did not succeed with their testimony it is only logical that we must execute them if they did succeed with the intention behind their false testimony. In the scenario we presented this principle of אין עונשין מן הדין would not apply and therefore would not stop us from executing these witnesses.

However, the fact is that the principal exegetical argument is derived from the fact that the Torah should have written כאשר ענה על אחיו, in which event it would have referred to what the Torah wrote in verse 18 שקר ענה באחיו. Had the Torah written these words I would have known that it intended to do to the witnesses as they had done. The fact that the Torah does not use the more comprehensive word ענה, but writes the word זמם shows that it wishes to limit the parameters which enable the court to apply the death penalty to these witnesses. We have a Baraitha in Makkot 5 which goes as follows: "The son of the scholar who interpreted that the word כאשר זמם means that we do not execute the false witnesses if their victim had already been executed as a result of their testimony, said to his father: 'father, why should they not be executed? We have logic on our side; if we execute such witnesses even if their testimony did not result in their victim's death then surely we must exceute them when it did result in their victim's death!' His father replied that the sages taught that אין עונשין מן הדין, that logic does not suffice as a reason to apply a death penalty in situations where the Torah did not specifically request that a death penalty be imposed. This is not the case here." You must not deduce from this that but for the ruling that in order to apply a death penalty the Torah must state so specifically, the logic of the son would have been unassailable and I would have executed these עדים זוממים, "spurious witneses." The reason is that the distinction between the Torah writing זמם instead of ענה would not suffice to cancel the strength of the logical argument cited in the Baraitha. This is why we also needed the principle of אין עונשין מן הדין, in order not to arrive at a faulty ruling.

כי תצא למלחמה, When you go out into battle, etc." Perhaps the verse alludes to the battle man fights against his evil urge. It intends to remove fear and timidity from your heart. The Torah writes la-milchamah instead of le-milchamah, vocalising it thus to indicate that it refers to the well-known battle, the most crucial one, the fiercest one. In this battle man suffers from two elements both of which are apt to undermine him and to weaken his power to resist the attacker. 1) Man has never been trained to fight this particular adversary as he has been trained to fight external enemies. 2) the very composition of man is such that the enemy is constantly part of him urging him to steal, to lie, to murder, to eat whatever he desires, etc. These factors make it difficult for a human being to listen to the voice of the Torah which is "only" an external voice. These difficulties are multiplied once man has sinned repeatedly and his deeds have created forces which aid the evil urge in his fight against him, as I have explained on numerous occasions.

This is why G'd tells you here that "when you go out to do battle and you see horses and riders more numerous than yourself etc." The word סוס, "horse," is a simile for the readiness of the evil urge to do battle and the word רכב is a simile for the fact that man is composed of a variety of materials, drawn to the profane as well as to the sacred, instead of a single element as is his attacker the evil urge. The words עם רב, "numerous people," are a hyperbole for the multitude of evil forces created by man's sins all of which are arraigned against him in this battle. The Torah reassures us לא תירא מהם, "you must not be afraid of them for the Lord your G'd is with you." The Torah agrees that if you were on your own, unassisted by G'd, you would be justified in being afraid of this battle; however, seeing that the Lord your G'd is on your side you need not fear; you may rest assured that G'd will save you provided you want to rehabilitate yourself morally and ethically.

The Torah continues with המעלך מארץ מצרים, "the G'd who has brought you out of Egypt." The miracle of what happened at the Exodus demonstrated to you that G'd has the power to free you from the spiritually negative forces, קליפות, which had held you captive prior to the Exodus and had prevented the sanctity within you from being freed. The memory of the Exodus must always serve as a sign for you that you can overcome the forces of evil in the war in which you are engaged. We find confirmation of this thought in Psalms 37,32: "The wicked watches for the righteous, seeking to put him to death." The Psalmist assures us in the verse following "G'd will not abandon him to his power; He will not let him be condemned in judgment." Our sages in Kidushin 30 explain that these verses refer to the assault on man by the evil urge and to the assistance G'd extends to man in that fight.

להלחם לכם..להושיע אתכם, "to do battle for you with your enemies and to save you." The meaning of להלחם is to destroy your enemies, whereas the additional להושיע אתכם means to ensure that not one of you becomes a casualty of war. This last point is always the essence of the miracle by means of which we know that G'd fights on our side. This may be the reason that at the beginning of the verse the Torah mentions ה׳ אלוקיכם emphasising that both the attribute of Mercy and the attribute of Justice are involved here. The attribute of Mercy expresses itself by saving the Israelites, the attribute of Justice by destroying its adversaries. Had it not been for the Torah wanting to emphasise this it only had to write כי אלוקיכם הולך.

מי האיש הירא, "Who is the man who is afraid, etc." We are told in Sotah 44 that our verse speaks of soldiers who are afraid to die in battle due to sins they had committed. We find such a concept in Isaiah 33,14: "Sinners in Zion are frightened." It is natural that people who have sinned should be worried. Even people who are not aware that they did commit sins would start to worry about such a possibility when they go to war, on a dangerous mission. Shulchan Aruch Or Hachayim 54 mentions that one has reason to worry even if one only knows that one spoke during certain parts of the prayers when one should not have interrupted one's prayer by talking. The reason is simple. When one goes into battle one needs a miracle in order not to be hurt. If one is guilty of sins which one has not atoned for one cannot expect G'd to perform a miracle.