The Two Roles of a Judge: Clarifying Law vs Making Law

Rabbi Zweig analyzes an apparent contradiction between Rashi (רש"י)'s definitions of shotrim (court officers) in different parshas, using this to illuminate a fundamental distinction in judicial function. In Parshas Devarim, Rashi defines shotrim as enforcers who administer malkos (Torah (תורה)-mandated lashes), while in Parshas Shoftim, Rashi expands the definition to include makkos mardus (discretionary punishment with a stick). This inconsistency reflects two distinct judicial roles. The shiur develops the principle that judges serve dual functions: clarifying existing law (biror halacha (הלכה)) and making new law as agents of sovereign authority. When functioning purely judicially to clarify halacha, judges can err, and knowledgeable individuals need not follow mistaken rulings. However, when judges exercise sovereign power to establish policy and create law, their decisions become binding regardless of perceived errors.