Law and Order
I. Individual Punishment
The debate over the culpability of the biblical residents of Shechem reaches beyond the text to legal realms but should also extend to our philosophy of citizenship. Following Shechem the man’s attack on Dinah, her brothers tricked and killed the male residents of the city. Ya’akov condemned the brothers, to which they firmly responded (Gen. 34).
Why were all the residents punished for a single man’s sin? Rambam (Mishneh Torah, Hilkhos Melakhim 9:14) uncharacteristically explains this biblical episode in his legal code. People in general are obligated by the Noachide code to establish courts to maintain justice. Since Shechem was unpunished for his crime, the city residents clearly were failing to enforce law and order, and therefore liable for violating the command to establish courts. According to the Rambam, administering justice is a personal obligation of each citizen.
II. Group Responsibility
Ramban (Gen. 34:13) strongly disagrees. In his view, the Noachide command is to interact with a legal system based on Torah’s legislation. A society must regulate itself with the definition of torts and crimes given by the Torah. Rather, the brothers must have known that the town’s citizens were generally wicked and deserving of punishment.
But how does the Ramban differ with the Rambam on the key obligation to establish courts? Certainly he would agree that part of legislating based on the Torah’s definition includes establishing courts to administer justice. It seems that the Ramban believed this to be a communal obligation, devolving on society as a whole and not each individual. Therefore, each Shechemite could not be held liable for the lack of justice in the town. After all, one individual cannot enforce justice on his own. If so, he cannot be held responsible for its absence.
III. Political Theory
The nature of democracy may also revolve around this debate. Does an elected official serve as a representative of his constituents or as an individual selected by voters? Is he a bureaucratic functionary or an agent acting on behalf of his senders?
Jewish legal authorities dispute this topic. According to R. Moshe Schick (Responsa Maharam Schick, Orach Chaim 34), society is a partnership of citizens. Some partners are given senior positions out of organizational convenience–someone must do the dirty work of day-to-day governing. Elected officials do the work of all the citizens because not everyone can do it. But all are theoretically obligated to do so.
R. Eliezer Waldenberg (Hilkhos Medinah 3:4:5) argues that elected officials act as trustees (aputropsin). They are the functionaries entrusted with public works. They are not doing the job in which we are all obligated but, rather, which is necessary for the public good.
According to the first theory, a government official is a representative acting on behalf of the citizens, a senior partner chosen for the role that each citizen might otherwise have to fill. The Rambam’s view of personal obligation for justice finds its fulfillment in such a representative government. Each citizen plays a role in legislation–and enforcement–by appointing an agent to govern.
According to the second theory, the elected official is selected to serve on his own. He is chosen as a trustee. Ramban would presumably favor this view, whereby governance is a communal task and elected officials serve not as representatives but as communal functionaries appointed democratically.
IV. Communal Responsibility
Perhaps we can find echoes of this debate in explanations of the enigmatic eglah arufah. If a dead body is found outside of a city, the city’s leaders must absolve themselves of sin over a ritual calf (Deut. 1:1-9). What is the meaning of this puzzling ritual?
Rambam (Moreh Nevukhim 3:40) explains this ceremony as a subterfuge to uncover the killer. With all the publicity over the killing, the public will enthusiatically search for clues and find the culprit. Ramban (Deut. 29:4) rejects this rationale because it renders the ritual inherently meaningless. Instead, he considers it a sacrifice of the community elders due to the killing.
According to the Rambam, the eglah arufah ceremony encourages each individual to find the killer, thereby atoning for the death. The communal activity serves to activate each member. However, according to the Ramban, only the central authority figures act in this ritual. Only they retain responsibility following this communal killing. Not each individual but the community as a whole, represented by its leaders, must atone for the death.
The Ramban sees this eglah arufah ritual for the community as a single unit while the Rambam sees it for the community as a group of individuals. Similarly, Ramban sees the obligation to establish courts as a requirement for the community as a whole while Rambam sees it as an obligation on the community of individuals.
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