1) REPEATING THE WORDS OF THE BLASPHEMER IN COURT
OPINIONS: The Mishnah describes the process of the trial of a Megadef, a blasphemer. Before the Megadef can be put to death, the Beis Din must hear from the witnesses exactly what the Megadef said. Before the witnesses relate what they heard, the Beis Din sends everyone else out of the room. The Beis Din then instructs the oldest witness, "Say what you heard explicitly." The witness repeats the words of blasphemy that he heard, and the judges arise and rend their garments (with a tear that may never be mended). The second witness then says, "I heard the same," and the third says, "I heard the same."
What exactly is the oldest witness supposed to say?
(a) The Yerushalmi (7:8) asks that it is not possible that Beis Din would ask the witness to say words of blasphemy. The Yerushalmi answers that the witness says only that "the name which I have uttered is the name [of Hash-m] which he cursed and cursed with." The KESEF MISHNEH (Hilchos Avodah Zarah 2:8) explains that the Yerushalmi means that the witness mentions the Hash-m's four-letter name and says that this is the name which the Megadef both cursed and used to curse in the manner of "Yakeh Yosi Es Yosi," replacing the word "Yosi" with the name of Hash-m that the Megadef said. (See Insights to 55b with regard to which four-letter name the Megadef cursed, and with which name the Megadef cursed it.) The Kesef Mishneh writes that he is uncertain why the Rambam does not codify the statement of the Yerushalmi.
The CHIDUSHEI HA'RAN also quotes the Yerushalmi and explains that according to the Yerushalmi, when the Beis Din says, "Say what you heard explicitly," it means that the witness should pronounce the name of Hash-m, which is not usually pronounced explicitly (other than when one recites prayers and blessings).
(b) The TOSFOS YOM TOV on the Mishnah here writes that the Rambam understands that the Bavli disagrees with the Yerushalmi (as the Yerushalmi's explanation is not consistent with the simple meaning of the Mishnah). The Bavli would have mentioned this explanation had it agreed with it. The Rambam therefore remains with the simple meaning of the Mishnah, that the witness says over *every word* of the blasphemous statement of the Megadef.
Why, though, is the Gemara here not bothered by the question of the Yerushalmi? How can Beis Din tell the witness to utter words of blasphemy against Hash-m's name? The Tosfos Yom Tov answers that since neither the witness nor the Beis Din have any blasphemous intent, but, on the contrary, their motivation is to uphold the honor of Hash-m by putting the Megadef to death, there is nothing wrong with repeating the words of the Megadef. This is similar to the Torah's command to erase the Megilas Sotah even though the name of Hash-m is written on it. The Torah commands that the status of the woman be determined, and therefore it permits, and commands, the erasure of Hash-m's name from the Megilas Sotah. (See MARGOLIYOS HA'YAM who discusses the validity of the comparison of the trial of the Megadef to the case of a Sotah.) (Y. MONTROSE)
2) SHECHEM AND THE BEN NOACH'S MITZVAH OF "DINIM"
OPINIONS: The Gemara lists the seven Mitzvos of Bnei Noach. One of those Mitzvos is the requirement to set up a system of courts and law ("Dinim"). What are the parameters of this Mitzvah?
(a) The RAMBAM (Hilchos Melachim 9:14) writes that the reason why Shimon and Levi deemed that the people of Shechem deserved to be put to death (Bereishis 34:25) was that they failed to fulfill the Mitzvah of Dinim when they did not arrange a trial to judge the perpetrator for the rape of their sister Dina (an act which is considered like stealing, one of the seven Mitzvos of Bnei Noach).
The RAMBAN (Bereishis 34:25) asks many questions on the words of the Rambam. Among his questions, he asks that the Mitzvah of Dinim includes the law that a judge is not allowed to decide a case based on corrupt or fraudulent grounds. If a judge does so, he is Chayav Misah for the active transgression of a prohibition. (The Ramban cites a Yerushalmi as proof for this.) However, if the Nochrim in a certain city failed to set up a court altogether, they are not Chayav Misah, since they merely neglected to perform a positive commandment and did not transgress a prohibition. The Gemara later (57a) teaches that "Azharasan Zo Hi Misasan" -- the law prescribes the death penalty for Bnei Noach for transgressing any command for which they have been warned. This implies that only the violation of an *Azharah*, which refers to a negative prohibition (see 59b), carries the death penalty. Since the Mitzvah of Dinim is a positive commandment, failure to fulfill it should not warrant the death penalty.
The CHIDUSHEI HA'RAN asks another question on the Rambam. Perhaps there *was* a court in the city of Shechem, but that court simply did not have the authority to try Shechem or his father, Chamor, the leader of the city. Accordingly, it is unreasonable to suggest that the entire city was Chayav Misah for failure to try individuals who were "above the law."
The Ramban and the Chidushei ha'Ran therefore give a different reason for why Shimon and Levi felt that their action was justified. They saw that besides the sin that was perpetuated with their sister, the people of Shechem were all evil idolaters, and therefore they were deserving of death. Although Yakov Avinu also knew this, he did not deem it prudent for Shimon and Levi to kill all of the residents of the city since such an act would arouse the ire of the surrounding nations. (According to the Sefer ha'Yashar, Yakov and his family indeed faced a tremendous threat, from which they were saved only by a miracle.)
How does the Rambam answer the questions on his explanation? The ME'IRI explains that the Ramban's assumption that the Mitzvah of Dinim is a Mitzvas Aseh and thus is not punishable with death is incorrect. The Gemara later (58b-59a) says that only negative prohibitions are included in the seven Mitzvos of Bnei Noach, even though there actually are more than seven commandments (such as the prohibition against observing Shabbos). The Gemara questions its own assertion: if only prohibitions are included in the seven Mitzvos of Bnei Noach, then why is the Mitzvah of Dinim -- a positive commandment -- included? The Gemara answers that the Mitzvah of Dinim includes both a positive and a negative element. The Me'iri explains that the negative element is a prohibition against letting evildoers, such as thieves and rapists, thrive in the midst of society. Since this negative prohibition is included in the Mitzvah of Dinim, it indeed is appropriate to refer to that Mitzvah as an "Azharah."
The OR HA'CHAIM answers the Chidushei ha'Ran's question. He explains that the Rambam must have deduced from the verse that the people of Shechem encouraged and even advised Shechem how to carry out his wicked deed, and thus they were just as guilty and deserving of death.
(b) The Ramban explains his position on the Mitzvah of Dinim. He says that not only are Nochrim commanded with a Mitzvah to establish courts, but they are also commanded to apply the Torah's laws of monetary matters (with regard to cases of stealing, overcharging, cheating, paying workers on time, etc.).
(c) The MARGOLIYOS HA'YAM quotes the RI ANTULI who maintains that Nochrim are commanded to judge based on the laws they have established in their country, and not necessarily based on the laws of the Torah.
The Margoliyos ha'Yam quotes the TESHUVOS HA'REMA (#10) who explains that these two opinions stem from the argument in the Gemara between Rebbi Yochanan and Rebbi Yitzchak regarding the source of the Mitzvah of Dinim. According to Rebbi Yochanan, who says that the source for this Mitzvah is the word "va'Yetzav" -- "And he commanded" (Bereishis 2:16), even secular law suffices to fulfill this obligation. According to Rebbi Yitzchak, who derives the Mitzvah of Dinim from the word "Elokim" -- "Hash-m" (ibid.), the Nochrim are supposed to use only the monetary laws given to the Jewish people at Har Sinai. (See Teshuvos ha'Rema at length.) (Y. MONTROSE)