The Idolatrous City in a Sefer

The Rambam, Hilchos Avodah Zarah 4:4, wrote as follows: None of the cities of refuge can be made an ir hanidachas, as it says באחד שעריך ("in one of your gates") — and not Jerusalem, for Jerusalem cannot be made an ir hanidachas because it was not apportioned among the tribes. And one does not make an ir hanidachas at the frontier, so that idolaters should not enter and lay waste to Eretz Yisroel. And one beis din does not make three condemned cities alongside one another; but if they were far apart, it may do so. End quote.

It appears plainly from the words of the Rambam that there is a fundamental distinction between, on the one hand, that the cities of refuge and Jerusalem cannot be made a condemned city, and, on the other hand, that one does not make an ir hanidachas at the frontier, and likewise that one beis din does not make three cities. For regarding the cities of refuge and Jerusalem, the law was expressed with the wording "cannot be made" (na'asis), which implies that the fact that it is not made an ir hanidachas is a law on account of itself, whether or not the case was brought before the Sanhedrin. Whereas regarding the fact that one does not make an ir hanidachas at the frontier, and that one beis din does not make three condemned cities alongside one another, the Rambam changed his wording and wrote "one does not make" (ein osin), which implies that this is a command to the Sanhedrin.

Now, this matter is self-evident: that Torah law did not grant the judge the authority to say that, even though by the letter of the law this man is liable for a monetary payment, or lashes, or death, out of emotion I do not wish to hold him liable. For the role of the judge is not to rule according to what seems to his own reasoning, but rather according to what, in his eyes, is the halacha. And from this it is compelled that, even though through the ruling of the court a liability for penalty payment or lashes takes effect in actuality upon the one being judged, one should not say that before this he was not liable for the money or the lashes; rather, he was always liable because he transgressed the prohibition (at least in the hands of Heaven), and now it was so ruled in beis din.

Accordingly, it is fitting to contemplate that which the Rambam wrote, that the Sanhedrin may not make an ir hanidachas at the frontier: on the one hand, one could say that this is merely a law that one should not rule thus concerning a frontier city, but the fact that it is not an ir hanidachas is not a ruling; and on the other hand, one could say that there is a certain obligation upon the beis din to rule that this city is not an ir hanidachas.

And it appears to decide in accordance with the second side, for if you were to say that they do not exempt the city, then the very liability remains upon the city — just as with one who is liable for lashes and the like — and if so, one may not judge the individuals of the city who worshipped idols with stoning, since their judgment has not yet been concluded, as is explained in the Gemara Sanhedrin (folio 112a) that the ruling of the Sanhedrin is the conclusion of the judgment of their original case; see there.

And it may be said that the Rambam inferred this from what we learned in the Mishnah (Sanhedrin folio 2a): One does not make an ir hanidachas except by a beis din of seventy-one; one does not make an ir hanidachas at the frontier, nor three, but one makes one or two. End quote. And at first glance it is not understood what relevance there is here to the fact that one does not make an ir hanidachas at the frontier, for here we are dealing with which cases come before which courts — that monetary cases are before three, capital cases before twenty-three, and so on^[1].

And it is possible to say that from this difficulty the Rambam decided that the intent of the tanna of our Mishnah is that the fact that one does not make cities of refuge at the frontier is a law upon the Sanhedrin specifically — that just as only the great beis din can make an ir hanidachas, so too they are warned that one may not make an ir hanidachas at the frontier. And with this it is understood why it was not taught here that Jerusalem and the cities of refuge cannot be made an ir hanidachas, for these laws do not depend upon the beis din; rather, the city itself removes from itself the possibility that the law of ir hanidachas should apply to it.

And in truth one can say more than this: that the Rambam holds that the intent of the Mishnah is that one does not make an ir hanidachas at the frontier, but one makes them liable for the death penalty of stoning; for so may one infer from what he wrote further on (in halacha 6): It emerges that if the worshippers were a minority, they are stoned and the rest of the city is saved; if they were a majority, they are brought up to the great beis din and their judgment is concluded there, and all those who worshipped are killed by the sword; see there. And it implies that until they come to the great beis din, not only has the judgment not been concluded that the city itself is an ir hanidachas and its inhabitants are liable to the sword, but even their judgment for stoning was not concluded by the lesser court^[2].

Indeed, the opinion of Rashi is not so, for he wrote to explain what we learned further on (folio 111b): מקרבך ("from your midst") — and not from the frontier; which implies "in the middle" and not from the frontier, that if there was a frontier city between the province of the idolaters and the province of Israel, it is not made an ir hanidachas, for it is a scriptural decree that it should not be made an ir hanidachas; see there. And from what Rashi wrote, "it is not made an ir hanidachas," it implies that since it is a scriptural decree, the law of ir hanidachas does not apply to it from the outset.

And likewise it appears that Rashi disagrees with the Rambam and holds that through a beis din of twenty-three the ruling for stoning is issued; for we learned (folio 112a): It was stated — Rabbi Yochanan said, we judge and set aside; and Reish Lakish said, one increases the courts for them; and Rashi explained (s.v. u'Reish Lakish) as follows: one increases the courts for them so that their testimony may be received on one day and the judgment of all of them concluded on one day; see there. And it is explained that even according to Reish Lakish, Rashi holds that the lesser court concludes their judgment for stoning^[3].

And it may be said that Rashi and the Rambam each follow their own approach: for the Rambam holds that nothing is ruled by the beis din of twenty-three regarding an ir hanidachas, and the entire conclusion of the judgment is by the Sanhedrin; and accordingly, in a frontier city the Sanhedrin exempts them from death by the sword and makes them liable to death by stoning. And Rashi disagrees and holds that the ruling for stoning was already issued by the beis din of twenty-three, and the Sanhedrin merely clarifies that it is a frontier city, but there is nothing of a ruling in this — and it emerges that the fact that one does not make an ir hanidachas at the frontier is not a law effected by the great beis din, but rather is inherent to the city itself^[4].

And see the Ktav Yad Kaufmann and the Dikdukei Soferim, that the version of the Mishnah is: "There is no ir nidachas at the frontier, nor three ir nidachas." And according to this version, the proof that we wrote for the approach of the Rambam is removed, and accordingly one could say that this is where Rashi and the Rambam disagree — that before the Rambam the version was as it is before us, and Rashi disagrees because he had a different version in the Mishnah.

However, this is not compelled, for even if you were to say so, one still needs to reconcile, according to the opinion of Rashi, why these laws are taught in our Mishnah, and also why it does not teach the matter that an ir hanidachas is not made in Jerusalem and in a city of refuge. And it may be said that Rashi holds that the source for this section of the Mishnah was a beraisa that discussed several particulars of the laws of ir hanidachas, and Rabbi copied the beraisa in its form^[5], and accordingly the point of dispute between Rashi and the Rambam is one of methodology; and if so, even if we were to hold that the version before Rashi was identical to the version that was before the Rambam, this may be said.

And with this one can resolve the question of the Minchas Chinuch (mitzvah 464) upon the Ramban (Parashas Shoftim), that even the receiving of testimony for capital cases requires a beis din of twenty-three — for according to this, why is a beis din of twenty-three effective to rule the judgment of stoning in an ir hanidachas before the judgment is ruled upon half the city and the rulings are brought to the great beis din in Jerusalem? And according to what we have written, one may say that this is difficult only according to the opinion of the Rambam, that the lesser Sanhedrin merely receives their testimony; but according to the opinion of Rashi, it may well be said that since these are two rulings distinct from one another, the law of the ir hanidachas was not stated regarding the ruling of the beis din of twenty-three, as we have explained.