Deuteronomy Chapter 17
The Mishnah questioned why Deuteronomy 17:6 discussed three witnesses, when two witnesses were sufficient to establish guilt. The Mishnah deduced that the language of Deuteronomy 17:6 meant to analogize between a set of two witnesses and a set of three witnesses. Just as three witnesses could discredit two witnesses, two witnesses could discredit three witnesses. The Mishnah deduced from the multiple use of the word "witnesses" in Deuteronomy 17:6 that two witnesses could discredit even a hundred witnesses. Rabbi Simeon deduced from the multiple use of the word "witnesses" in Deuteronomy 17:6 that just as two witnesses were not executed as perjurers until both had been incriminated, so three were not executed until all three had been incriminated. Rabbi Akiba deduced that the addition of the third witness in Deuteronomy 17:6 was to teach that the perjury of a third, superfluous witness was just as serious as that of the others. Rabbi Akiba concluded that if Scripture so penalized an accomplice just as one who committed a wrong, how much more would God reward an accomplice to a good deed. And the Mishnah further deduced from the multiple use of the word "witnesses" in Deuteronomy 17:6 that just as the disqualification of one of two witnesses would invalidate the evidence of the set of two witnesses, so would the disqualification of one witness invalidate the evidence of even a hundred. Rabbi Jose said that these limitations applied only to witnesses in capital charges, and that in monetary suits, the balance of the witnesses could establish the evidence. Rabbi said that the same rule applied to monetary suits or capital charges where the disqualified witnesses joined to take part in the warning of the defendant, but the rule did not disqualify the remaining witnesses where the disqualified witnesses did not take part in the warning. And the Gemara further qualified the Mishnah's ruling.
Who were the judges in the court described in Deuteronomy 17:9? The Mishnah taught that the High Priest could serve as a judge. But the King could not. When a vacancy arose, a new judge was appointed from the first row of scholars who sat in front of the judges.
Rav Joseph reported that a Baraita interpreted the reference to "the priests" in Deuteronomy 17:9 to teach that when the priests served in the Temple, a judge could hand down capital punishment, but when the priesthood is not functioning, the judge may not issue such judgments.
Deuteronomy 17:9 instructs, "you shall come . . . to the judge who shall be in those days," but how could a person go to a judge who was not in that person's days? The Rabbis taught in a Baraita that Deuteronomy 17:9 employs the words "who shall be in those days" to show that one must be content to go to the judge who is in one's days, and accept that judge's authority. And the Rabbis taught that Ecclesiastes 7:10 conveys a similar message when it says, "Say not, 'How was it that the former days were better than these?'"
The Sages based their authority to legislate rules equally binding with those laid down in the Torah on the words of Deuteronomy 17:11: "According to the law that they shall teach you . . . you shall do; you shall not turn aside from the sentence that they shall declare to you."
The Mishnah recounted a story that demonstrated the authority of the court in Deuteronomy 17:11 — that one must follow the rulings of the court and "not turn . . . to the right hand, nor to the left." After two witnesses testified that they saw the new moon at its proper time (on the thirtieth day of the month shortly before nightfall), Rabban Gamaliel (the president of the Great Sanhedrin in Jerusalem) accepted their evidence and ruled that a new month had begun. But later at night (after the nightfall with which the thirty-first day of the earlier month would have begun), when the new moon should have been clearly visible, no one saw the new moon. Rabbi Dosa ben Harkinas declared the two witnesses to be false witnesses, comparing their testimony to that of witnesses who testify that a woman bore a child, when on the next day her belly was still swollen. Rabbi Joshua told Rabbi Dosa that he saw the force of his argument. Rabban Gamaliel then ordered Rabbi Joshua to appear before Rabban Gamaliel with his staff and money on the day which according to Rabbi Joshua's reckoning would be Yom Kippur. (According to Rabbi Joshua's reckoning, Yom Kippur would fall a day after the date that it would fall according to Rabban Gamaliel's reckoning. And Leviticus 16:29 prohibited carrying a staff and money on Yom Kippur.) Rabbi Akiva then found Rabbi Joshua in great distress (agonizing over whether to obey Rabban Gamaliel's order to do what Rabbi Joshua considered profaning Yom Kippur). Rabbi Akiva told Rabbi Joshua that he could prove that whatever Rabban Gamaliel ordered was valid. Rabbi Akiva cited Leviticus 23:4, which says, "These are the appointed seasons of the Lord, holy convocations, which you shall proclaim in their appointed seasons," which is to say that whether they are proclaimed at their proper time or not, God has no appointed seasons other than those that are proclaimed. Rabbi Joshua then went to Rabbi Dosa, who told Rabbi Joshua that if they called into question the decisions of the court of Rabban Gamaliel, then they would have to call into question the decisions of every court since the days of Moses. For Exodus 24:9 says, "Then Moses and Aaron, Nadab and Abihu, and 70 of the elders of Israel went up," and Exodus 24:9 does not mention the names of the elders to show that every group of three that has acted as a court over Israel is on a level with the court of Moses (as most of the members of that court also bore names without distinction). Rabbi Joshua then took his staff and his money and went to Rabban Gamaliel on the day that Rabbi Joshua reckoned was Yom Kippur. Rabban Gamaliel rose and kissed Rabbi Joshua on his head and said, "Come in peace, my teacher and my disciple — my teacher in wisdom and my disciple because you have accepted my decision."
The Mishnah explained the process by which one was found to be a rebellious elder within the meaning of Deuteronomy 17:12. Three courts of law sat in Jerusalem: one at the entrance to the Temple Mount, a second at the door of the Temple Court, and the third, the Great Sanhedrin, in the Hall of Hewn Stones in the Temple Court. The dissenting elder and the other members of the local court with whom the elder disputed went to the court at the entrance to the Temple Mount, and the elder stated what the elder and the elder's colleagues expounded. If the first court had heard a ruling on the matter, then the court stated it. If not, the litigants and the judges went to the second court, at the entrance of the Temple Court, and the elder once again declared what the elder and the elder's colleagues expounded. If this second court had heard a ruling on the matter, then this court stated it. If not, then they all proceeded to the Great Sanhedrin at the Hall of Hewn Stones, which issued instruction to all Israel, for Deuteronomy 17:10 said that "they shall declare to you from that place that the Lord shall choose," meaning the Temple. If the elder then returned to the elder's town and issued a decision contrary to what the Great Sanhedrin had instructed, then the elder was guilty of acting "presumptuously" within the meaning of Deuteronomy 17:12. But if one of the elder's disciples issued a decision opposed to the Great Sanhedrin, the disciple was exempt from judgment, for the very stringency that kept the disciple from having yet been ordained served as a source of leniency to prevent the disciple from being found to be a rebellious elder.
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