27:28 & 29 כח אַךְ-כָּל-חֵרֶם
אֲשֶׁר יַחֲרִם אִישׁ לַירוָר מִכָּל-אֲשֶׁר-לוֹ, מֵאָדָם וּבְהֵמָה וּמִשְּׂדֵה
אֲחֻזָּתוֹ--לֹא יִמָּכֵר, וְלֹא יִגָּאֵל: כָּל-חֵרֶם, קֹדֶשׁ-קָדָשִׁים
הוּא לַיֶרוֶָר כט כָּל-חֵרֶם, אֲשֶׁר יָחֳרַם מִן-הָאָדָם--לֹא
יִפָּדֶה: מוֹת, יוּמָת
There is an idea of Cheirim. What is this Cheirim referring to?
There is
a Yesod Gadol here in the Ramban which is an important idea to know for the
learning of Tanach. This point is then taken to explain many difficult Parshas
in Tanach. The Ramban explains that this Posuk is teaching us a new Mitzvah in
the Torah which is that Klal Yisrael as a whole is allowed to create new
Issurin to the point of Mos Yumas. Meaning that you can give a Chiyuv Misah
through a Cheirim.
The
Ramban himself explains with this a number of Parshiyois in Nach. We find at
the end of Sefer Shoftim in Perek 21, That an entire city of Yaveish Gilad as
brought down in 21:10 is killed out by soldiers of Klal Yisrael, י וַיִּשְׁלְחוּ-שָׁם הָעֵדָה, שְׁנֵים-עָשָׂר
אֶלֶף אִישׁ--מִבְּנֵי הֶחָיִל; וַיְצַוּוּ אוֹתָם לֵאמֹר, לְכוּ וְהִכִּיתֶם
אֶת-יוֹשְׁבֵי יָבֵשׁ גִּלְעָד לְפִי-חֶרֶב, וְהַנָּשִׁים, וְהַטָּף
There was a specific cause that everyone was to join and this city
didn’t join and was put into Cheirim. What right did they have to kill out an
entire city? The Ramban says that right is based on our Posuk.
We find
also in Shmuel 1 Perek 14, that Yonason the son of Shaul is participating in a
day of battle, and he ate during the day. In Posuk 44 Shaul says he is Chayuv
Misah, מד וַיֹּאמֶר שָׁאוּל,
כֹּה-יַעֲשֶׂה אֱלֶֹרים וְכֹה יוֹסִף: כִּי-מוֹת תָּמוּת, יוֹנָתָן מה וַיֹּאמֶר
הָעָם אֶל-שָׁאוּל, הֲיוֹנָתָן יָמוּת אֲשֶׁר עָשָׂה הַיְשׁוּעָה הַגְּדוֹלָה
הַזֹּאת בְּיִשְׂרָאֵל--חָלִילָה חַי-יְרוָר אִם-יִפֹּל מִשַּׂעֲרַת רֹאשׁוֹ
אַרְצָה, כִּי-עִם-אֱלֹרים עָשָׂה הַיּוֹם הַזֶּה; וַיִּפְדּוּ הָעָם
אֶת-יוֹנָתָן, וְלֹא-מֵת There had been a Gezaira by Shaul not to eat
on the day of battle. Yonason didn’t know about this Gezaira and ate. The Posuk
has to tell us that the people had to come together and find a way how to save
Yonason from this Cheirim. What was the thought to kill him for eating something?
The Ramban says it is based on our Posuk.
The
Chasam Sofer in a Teshuva in Orach Chaim 208 has a letter to the Maharitz Chayes
which explains the concept of Mored B’malchus. We all know that someone who
rebels against the king is Chayuv Misah. Where in the Torah do we find such a
concept? The Chasam Sofer says that it comes from this Posuk (quoted above 27:29), from this Ramban. Anyone who is
Mored B’malchus is violating a Takanah that was made right after Moshe
Rabbeinu’s death in Sefer Yehosua 1:18 יח כָּל-אִישׁ
אֲשֶׁר-יַמְרֶה אֶת-פִּיךָ, וְלֹא-יִשְׁמַע אֶת-דְּבָרֶיךָ לְכֹל
אֲשֶׁר-תְּצַוֶּנּוּ--יוּמָת: רַק, חֲזַק וֶאֱמָץ This was a Cheirim made against any Mored B’malchus and the
Chasam Soifer says that is the basis that gives the right to kill anybody who
rebels against the king.
The Maharitz
Chayes himself disagrees and the Netziv in Ha'emek She'eila Siman 142:9 agrees with the Maharitz Chayes and they have a second Pshat on Mored B’malchus. They
hold that anyone who is Mored B’malchus is endangering the whole Klal Yisrael
and we know that anyone who endangers Klal Yisrael has a Chiyuv Misah.
So it turns out that we have 2
Peshatim in Mored B’malchus; 1) the Chasam Sofer who says it is a Din Cheirim
and 2) the Netziv who says it is a Din of a Roidef.
One of the differences (Nafka
Minah’s) are if you have to go to Bais Din so that they Pasken that he is Chayuv
Misah. Tosafos in a few places in Shas is Mesupeik. According to the Chasam Sofer’s
Pshat that it is a Cheirim you have to go to Bais Din like any other Chiyuv and
Pasken. However, according to the Netziv that it is a Din Rodef, you don’t have
to go to Bais Din.
With this we can explain
beautifully a Gemara in Maseches Megilla Daf 14a where it talks about Dovid’s intention
to kill Naval Hakermeli for being Mored B’malchus אמרה לו וכי דנין דיני
נפשות בלילה אמר לה מורד במלכות הוא ולא צריך למידייניה אמרה לו עדיין שאול קיים
ולא יצא טבעך בעולם. Naval’s wife Avigail argues that he should not be killed.
First she says can Dovid Pasken Dinei Nifashois at night? To which Dovid
replies Mored B’malchus Hu and we don’t have to sit in judgment. Avigail then
says Shaul is still alive so even though you are legally the king as Shmuel had
already appointed Dovid as a King, he had done it secretly, so since it is not
known there is not a Din of Mored B’malchus.
The question that everyone
asks is, why did Avigail first ask how can Dovid Pasken Dinei Nefashos at
night, which is an inferior argument and not say right away that you Dovid are not
known as the king yet?
According to what we just
discussed the Gemara is so Geshmak. There are 2 Dinim in a Mored B’malchus. The
Chasam Soifer’s Din of Cheirim and the Netziv and the Maritz Chiyus Din of Ridef.
So what happened? Avigail came and said there is a Din Cheirim, then you need a
Bais Din. Meaning will Dovid Pasken Dinei Nefashos at night? To which Dovid
replied, no he is a Mored B’malchus and therefore, does not need to have a Bais
Din to Pasken. Meaning he is a Rodef and doesn’t need a Din Toirah. On the Din
Rodef Avigail answers that Shaul is still alive and it is not known that you
are king, Dovid.
When do we say a Mored
B’malchus has a Din Rodef? Only when he is endangering the public, because
then the people won’t have respect for the king. In this case Dovid, you may
legally be king but since it is not known there is no Din Rodef. She couldn’t
present this argument first because the Din Cheirim would still apply and she
had to argue first on that, meaning will you Dovid Pasken Dinei Nefashos at
night. It is a very Geshmake understanding of a concept of Mored B’malchus
which explains this Gemara and others as well.
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