The Torah commands us to obey and respect our Shoftim, our Judges. Who is the Shofet that we have to honor? Does this halacha apply in our times?
Before starting what I have to say, I need to note that Chaim B sent in a Mareh Makom to Rav Zolti's Mishnas Yaavetz CM 6 which addresses many of the issues I discuss here, and if you only have time for one, his is the one to read.
Pesukim 17:10-11 tell us that we are obligated to obey our Judges and and to respect what they say no matter what they say.
According to the law they instruct you and according to the judgment they say to you, you shall do; you shall not diverge from the word they tell you, neither right nor left.
As time passes, as the distance from Har Sinai grows, what we know with clarity diminishes, and Torah wisdom deteriorates. Nonetheless, you may not say that because the Shofet of your time is inferior to those of previous generations he is not entitled to respect. Our parsha says twice that you must show respect to the Shofet, the Judge, of your time.
who will be in those days: [Now could one stand in front of those who are not in his day? Rather, it means that] Yiftach [one of the less important judges] in his generation, is [to be considered] as Samuel [the greatest judge] in his generation; you must treat him with respect.
In passuk 17:9, Rashi says that you must obey the Shofet. In 19:17, Rashi says you must show respect to the Shofet. Obviously, both rules need to be stated, because it is quite easy to be grudgingly obedient while being disrespectful, and vice versa.
There is a general requirement to honor a Talmid Chacham, derived from the passuk (Vayikra 19:32) מפני שיבה תקום. As the Rambam (6 TT 1) says,
Here is the question. Who is this Shofet that is empowered to do these things? Who is it that is entitled to our obedience and respect? Is his title earned by a standard of scholarship and wisdom, or is it granted democratically or by a committee? Is his status universal, or limited to the community, or neighborhood, or state, in which he holds that position?
The title "Shofet" does not mean the same thing in every context. For example, the definition of Shofet in Sefer Shoftim in Nach is clearly not the same as the Shofet of our parsha. The Shoftim, such as Shmuel and Shimshon and Yiftach and Gideon and Asniel, were given that title by the Ribono shel Olam, either through a Navi by means of prophecy or by the appointment of a Beis Din of Semuchim, through whom the Ribono shel Olam spoke (see Abarbanel's introduction to Sefer Shoftim- "ע"י ב"ד אשר רוח ה' דיבר בם.") I don't think that our passuk and the duty of obedience and respect is limited to such Shoftim. So to whom does it apply?
Additionally, at the beginning of our Parsha we are told that we must appoint Shoftim and Shotrim, Judges and enforcement officers. This was a Mitzva D'oraysa (see, e.g., Chinuch 491, Rambam 176,) when the institution of Semicha existed. Now that the Semicha referred to in the Torah no longer exists, the mitzva of appointing Shoftim no longer has the status of a Mitzva D'Oraysa. Does that mean that the din of obedience and respect for the Shofet of your time no longer applies? Are the De'Oraysa laws of obedience and respect limited to formally appointed Judges that have Semicha De'Oraysa?
There's an interesting Chinuch in 495, on the passuk in 17:10, ועשית על פי הדבר אשר יגידו לך. The Chinuch says
Along these lines, he says in Mitzvah 496, on the next passuk, the din of Lo Sassur,
Reading the Chinuch, it might seem that he holds that this halacha pertains even now Mideoraysa. I find that hard to believe. It seems to me, that the Chinuch's application of the din of V'asisa and Lo Sasur to Gedolei Torah in our time is not a psak halacha of what Din Torah entails. It is not an extrapolation, it is an extension. As he says in 495, שזהו העמוד החזק, שהתורה נשענת בו, ידוע הדבר לכל מי שיש בו דעת. He is extending what he calls the Din Torah because of the underlying rationale of the Mitzva. We don't hold like Reb Shimon that paskens on the basis of being דורש טעמא דקרא.
The Ramban in Bamidbar (35:29) says this even more clearly. On the passukוהיו אלה לכם לחקת משפט לדרתיכם בכל מושבתיכם he says
The Maharsha in Kesuvos 17a DH Vezeh Vezeh says that a king's honor is associated with that of the Ribono shel Olam, and this is why we say שחלק מכבודו ליראיו on a Jewish king, and why Chazal say (Brachos 58a) that מלכותא דארעא כעין מלכותא דרקיעא. It is Hashem's honor, granted in part to a king, and the king has no right to be mochel on Hashem's honor. One assumes that the honor to a Talmid Chacham is for his achievement in Torah, and what he has learned belongs to him, as the Gemara in Kiddushin 32b and AZ 19a says, תורה דיליה היא דכתיב ובתורתו יהגה. If that's the difference, then we would have to say that while the honor due to a Shofet has aspects of the honor of a Talmid Chacham, which can be waived, it also has aspects of the authority of a king, which is a divine entitlement, and not subject to mechila. And how do I know that the honor of a Shofet is like that of a king, namely, that it has aspects of Kovod to Hashem? Because the source of the obligation to honor a Shofet is our passuk in 19:17, which says ועמדו שני האנשים אשר להם הריב לפני ה' לפני הכהנים והשפטים. You see a direct correlation between ke'vod Hashem and ke'vod Hashofet. (I'm realize I have a problem with Reb Akiva's drasha in defense of Shimon Ha'amsoni. I hope I can find a way out.)
Reb Chaim Volozhiner, on the other hand, is quoted as saying that the logic of the distinction between a king and a talmid chacham is the following: A king is different from everyone else only because he was given the status by the people. That status expresses itself specifically in being honored by everyone else. If he were to be mochel his honor, this would entirely remove from him that which distinguishes him from other people. His mechila would mean that he is no longer a king. A Talmid Chacham, on the other hand, is entitled to honor because of what he is, because of what he knows, because he is a repository of Torah. Even if he is mochel his honor, he still remains a Talmid Chacham. The kavod of a Shofet is a hybrid of both elements, of wisdom and of having been appointed to a position that requires that we honor him. Even if he were mochel, he would have the special attributes of a Shofet. Therefore, according to Reb Chaim Volozhiner, his mechila should be effective.
Whose honor is greater- a King's or a Talmid Chacham's?
The Gemara in Sanhedrin says that Yannai was told to stand up for the Sanhedrin. Tosfos asks, but a Talmid Chacham doesn't have to stand before them (Sanh. 30b), and a king's honor is greater than that of a Talmid Chacham, as shown because the latter can be mochel his kavod while the former cannot; if so, certainly a king shouldn't have to stand before Sanhedrin. Tosfos answers that really, the honor of a Talmid Chacham is greater. The reason a king cannot be mochel is the passuk of Som Tasim Alecha Melech, a Gzeiras Hakasuv that mandates that we honor a king, irrespective of his wishes. A Talmid Chacham may be mochel because the Torah is his, as I brought above in the Maharsha from Kiddushin and AZ.
The Chasam Sofer (CM 29) asks on Tosfos from Brachos 12b. The Gemara there says that if a Talmid Chacham is sick, people are obligated to pray and beseech Hashem till they get sick from their efforts. The Gemara wants to prove this from the passuk by Shaul where the people were criticized for not sickening themselves on his behalf, but then the Gemara rejects this proof, because דלמא מלך שאני, perhaps a king is different. This apparently means that you can't prove that a Talmid Chacham is entitled to your efforts from the fact that a king is, which indicates the king's superiority.
The Chasam Sofer says answers that the fact that a king's illness requires greater efforts than a Talmid Chacham does not prove that his honor is greater. We see that when a king dies, all the people have a din Onein, and this is not true by a Talmid Chacham. The pshat is that a king represents and in some way embodies the people, which is not true by a Talmid Chacham.