[Avodah] Ben Noach legal systems (was: Abortion is not Murder?)

[Chana Luntz]

There are so many things on Avodah at the moment that I would like to
respond to - but school holidays are an extremely busy time for me (and my
kids don't go back until just before Rosh Hashana), making proper responses
difficult.  However I hope there will be a little bit more time over the
next few days to tackle just a few things albeit briefly, and at least here
is a response to this:

RYK wrote:

>I was thinking about this lately and would like to float the following
idea:

>There is a significant machlokes haposkim if Bnei Noach have to follow the
rules and details of Sheva Mitzvos Bnei Noach outlined in the seventh perek
Gemara Sanhedrin.

>One position is that they have to while the other is that they can create
their own rule-system within the general category of Sheva Mitzvos Bnei
Noach as long as such a system is just. I >believe that the former is the
position Rambam and the latter is the position of the Ramah.

Do you mean the Ramban (in Breshis parshat V'yishlach 34:13)?  The Remah in
the Yad Rema on Sanhedrin 57a seems to me if anything to take the opposite
position, saying that if BN are warned from the Torah on something "ru'in
hen l'mita" which seems to be the opposite of the position you are
advocating.

>IMHO the second position makes sense, as one would not expect every society
to give the death penalty for stealing one perutah.

>If one is working within the framework of the second opinion, could one
suggest that a society could determine what is and is not murder as long as
such a position was just.

I think this is a very interesting suggestion.  It seems to me though to
hinge on reading the word "neherag" - as used in Sanhedrin 57a particularly
(but throughout the dafim before and after) as not meaning "should be
killed" or "must be killed", but "may be killed".  Ie that what that whole
section is doing is not actually defining the requirements where a court
system *must* implement the death penalty, but the situations where they are
permitted to utilise the death penalty (in all other circumstances it being
illegal to utilise the death penalty).

Interestingly in this way one could justify  -eg the British legal system of
a couple of hundred years ago which had on its statute books hundreds of
hanging offences - many of them what we would today consider to be trivial
(there is a Horrible Histories sketch in which the one character starts
listing off the various offences, and the other adds in "hanged" as the
punishment, and it just goes on and on and on, with most of them probably
falling within at most the shave prutah category).  Ie what one would
therefore say following RYK's suggestion is that the British system was
legitimate, despite having what one might consider to be draconian
penalties. Not that they were required to have such penalties, rather that
they are permitted to do so and still be considered within the dinim mitzvah
of the sheva mitzvos benei noach.

However, while it seems to me on as much of a reading of that section in
Sanhedrin as I am able to spare for the moment that this could work with the
gemora  (if you are comfortable with the grammer), I am not sure one can
really see it in the rishonim.  Perhaps, some support might be found from
those who understand the BN to have been commanded in pshara (ie
compromise)- based on the pasuk in Breishis 18:19 (from which much of BN
dinim are learnt) ie that they are required to do "tzedaka v'mishpat" where
tzedaka is pshara (as learnt out from Sanhedrin 6b) (here the Yad Remah does
help you, as he brings this opinion, but so do numerous others, although
note worthily, I can't see it in the Rambam).  The thing about pshara is
that it is impossible to do if any form of gezel obligates one to apply the
death penalty, as the court would need to apply the sanction of the death
penalty to the party or parties who illegitimately took the other's
property, and therefore could not negotiate any form of pshara.  That is, it
seems to me, pshara is rooted in essence in the concept of mechila, or the
ability of the court to create such, and if you do not allow for even court
created mechila, and require the death penalty for any form of gezel, then
how could the court ever do pshara?  If however your suggestion is right,
and in fact neherag means "may impose the death penalty" not "must", then
that also allows the court to provide pshara as an alternative.

Note  by the way, that even if you held the Rambam's position that the
people of Shchem were legitimately killed, you could still hold to the above
reading - because one could say that while if there was a justice system,
and Shchem had been brought to justice regarding Dina, even if not via the
death penalty, then the people of Shchem would have been exempt. Because
they did not ensure any justice system at all, the default was that all
were, in the language of the Remah, reu'in hen l'mita.  However I agree that
the language of the Rambam, and the way he phrases the relevant section in
Hilchot Melachim perek 9 halacha 14) seems to militate against such a
reading.

RMB then responded to RYK's post as follows:

>I would split this question further: there are the actual issurim of the
other six mitzvos, and there is the penalty the courts are expected to mete
out when implementing the 7th. Even if one >holds that the legal system a
Noachide society has to establish must include every din of the Beris Noach,
that doesn't mean that they all have to be established as dinei nefashos.

This split though is not tenable, as this is specifically discussed in
Sanhedrin 57a, and suggested as a hava mina, but the maskana appears to be
with Rav Nachman bar Yitzchak- Azharah shelhen hu mitaten.

>The way I understood it, yes, the Rambam holds that the 7th mitzvah
requires a court that enforces the other 6.

>But, I had thought the Ramah holds that the chiyuv is to have a legal
system that implements an orderly society. Totally unrelated to the other
six mitzvos, except where their purposes overlap >(such as prohibiting
murder or theft).

Again, don't you mean the Ramban?  The Ramban takes the Rambam to task for
legitimising the killing of the people of Shchem, when Ya'akov was so
critical (and saying that while the people of Shchem were worthy of the
death penalty for being idol worshippers etc, it is not our (or Shimon and
Levi's) job to implement it).  As part of that discussion, he outlines his
understanding of the requirement for dinim as involving the wider
implementation of rules that are needed for a society to function.

Note by the way that the Rema (ie of Shulchan Aruch fame, rather than the
rishon the Remah of Yad Ramah fame) has a fascinating chiluk in Shut haRema
siman 10 - in which he argues that Rabbi Yochanan in the gemora here in
Sanhedrin holds, based on the pasuk he learns the obligation of dinim from,
that the obligation is one of upholding the customs and laws of the
particular state in question, but not necessarily in the way that the Torah
mandates for Jews, while Rabbi Yitzchak as a result of the pasuk he learns
the obligation of dinim from, learns that these dinim are required to be
identical to the equivalent details of the dinim in the Torah.  The Rema
then goes on to argue from the continuation of the gemora that the halacha
is like Rabbi Yitzchak.  However, this particular teshuva was rather a
polemic (it was all about the publishing turf wars) and the Netziv in Emek
HaSheila (on the Shiltut 2) explicitly disagrees with the Rema and holds
that everybody holds like the position attributed to Rabbi Yochanan by the
Rema.

Again, that would seem to provide some support to RYK's suggestion that the
dinim that are mandated allow for a certain flexibility of what is permitted
within the discretion of the legal system in question.  Although note that
the Chatam Sofer Chelek 6 - lekutim siman 14 disagrees with the suggestion
that this particular Shut of the Rema suggests he is deciding between the
Rambam and the Ramban in favour of the Ramban, and seems to suggest that one
can hold either way and still have the Rema's chiluk.

Regards

Chana