arur asher lo yakim -- chiddush of the Chasam Sofer

The meforshim struggle to understand what exactly “arur asher lo yakim es divrei haTorah ha’zos la’asos osam” refers to. If it is a catch all (see Rashi), then it effectively eliminates uniqueness of the other arurim. Ramban writes that the pasuk is referring to those who disobey mitzvos because they lack belief. If someone is overcome by temptation and eats a treif hamburger, that’s an issur of neveilah. If he does not believe that G-d prohibited treif hamburger, that’s “arur asher lo yakim…”  (Orthopraxy doesn't work.)  Ramban quotes another pshat from the Yerushalmi that those who have power and authority to stop others from doing aveiros must do so.

Chasam Sofer says what I think is a chiddush l’halacha. Chazal tell us that there are two aveiros which, if violated, are tantamount to rejecting the entire Torah: 1) avodah zarah; 2) shabbos. In parshas Shlach the Torah spoke about avodah zarah; here, the Torah speaks about shabbos. If a person sits in a hammock all day Saturday does not do any melacha, that’s not Shabbos, says the Chasam Sofer – that’s just being lazy. If you want to observe Shabbos, which counts as keeping kol ha’Torah, then you need “la’asos osam,” to do something to mark the day as significant. The “shamor” has to have a “zachor” that goes along with it. It’s a pretty remarkable statement – you have someone that technically did nothing wrong, but is still included in an arur. (See haKsav v’haKabbalah for a different pshat that also stresses the “la’asos osam” ending of the pasuk.)

Ramban's pshat is quoted by the M”B l’halacha, though if you are not up to Hil Y”K yet you may not have seen it. The M”B writes that there is a chiyuv tochacha to try to dissuade people from doing aveiros, including meting out punishment if necessary.  Who can do that?  Ramban writes that the “arur” of “asher lo yakim” applies to the king or his officers who have the power to be "makim" and force people to change their behavior.  An individual who has no authority and power has no obligation to coerce ba’alei aveira to get back on track.  Here too, says the M"B, coercion should be undertaken by beis din, not any individual. 

Anyway, I can't stop listening to this:

the unbearable absence of "why"

1. Does the heter of shvus d’shvus b’makom mitzvah work on yom tov sheni, where the mitzvah in question is only a derabbanan? The Aruch haShulchan (end of siman 586) writes that he doesn’t understand why this should even be a question. Shvus d’shvus is permitted where there is a tzoreh gadol. Surely a mitzvah derabbanan should count no less than a mundane tzorech gadol! (Is that so pashut? If I want to go on a picnic on Yom Tov, mitoch allows me to carry my picnic basket because there is a tzorech for me, but according the the Sha’agas Aryeh I can’t carry a lulav for the sake of a woman who wants to fulfill the mitzvah -- the picnic is more of a tzorech than a kiyum mitzvah. Is a chiyuv derabbanan better than a kiyum d’oraysa? I don’t know.)

What about a shvus d’shvus for the sake of hidur mitzvah, e.g. you have a kosher esrog, but can ask an aku”m to do an issur derabbanan and get you a better one? See the M.B. in 586:86 who says “efshar” a shvus d’shvus is allowed to get a ram’s horn shofar (a hidur) even if you have a perfectly kosher shofar from another animal. Why not use the Aruch haShulchan’s argument, i.e. a kiyum d’oraysa of hidur can’t be less of a tzorech than a great personal need, can it? Why is this just "efshar" and not a certainty?   (see the Sha’ar haTziyun)

2.  haven't read Andrew Sullivan in years, but this column of his about the dangers of technology "addiction" was worth a look.  The last three sentences: "And its [technology's] threat is not so much to our minds, even as they shape-shift under the pressure. The threat is to our souls. At this rate, if the noise does not relent, we might even forget we have any."

I think he figured that out without going to an asifa or reading it in a kol korei.  We probably should be able to do the same.

3. Getting to the parsha, most of the meforshim understand ‘V’hiflah Hashem es makoscha…” (28:59) to mean that the punishments of the tochacha will be unbelievable, extraordinary – a “peleh.” The Netzi”v offers a different interpretation based on a Chazal. The Midrash writes that the death of a talmid chacham is a greater catastrophe than anything described in the tochacha and even greater than the churban itself. The Midrash’s proof: the calamities of the tochacha and the churban are described using a single iteration of “peleh”, but the navi calls the death of a talmid chacham a “haflei va’peleh.” The death of a talmid chacham is a tragedy, but it's not a supernatural event. People were saddened when R’ Elyashiv and R’ Ovadya passed away, but their deaths at their advanced age could not have been unexpected. In what sense is it a “peleh?” (HaKsav vha’Kabbalah always has interesting things to say about language, and here too, he addresses the same issue.)

In Parshas Shoftim we read “Ki YIPALEI davar la’mishpat…” The Torah tells us that if you have a misunderstanding as to what the halacha is, the address to go to is the Sanhedrin sitting in Yerushalayim. The p-l-a root here simply means something not understood, not something unbelievable, miraculous or extraordinary. What makes the death of a talmid chacham a “peleh” is that it robs us of our understanding – we lose that individual’s insight and wisdom.

The same is true of the churban. The purpose of coming to the makom mikdash was not to see a miracle show. It was to gain understanding, particularly greater self-understanding.

The “peleh” of “HIFLAH Hashem es makoscha” is that we don’t understand what’s going on. If there was some order to the punishments, or if we understood what the underlying cause for the particular onesh was, then we would know how to react and hopefully correct cause. But when we are faced with wanton violence  and destruction, when the pesukim seem to have no order to them, when we can't make sense of the precise midah k'neged midah, then we feel helpless and do not know how to respond.  I haven't read Viktor Frankl in years, but still remember one line from his book: "Those who have a why to live can bear with any how."   The reason the tochacha is so unbearable is not the "how" and the "what" of the onesh, but the fact that we are robbed of seeing the "why."

remembering what Miriam had done

The Midrash writes that Moshe told Hashem that either he should heal Miriam or Moshe himself will do the job. Very strange – Moshe could do something without Hashem?

Ksav Sofer explains that Moshe was not sure what Miriam was guilty of – was it an issur bein adam laMakom or bein adam l’chaveiro? The Mishna tells us that Hashem does not give kapparah on a bein adam l’chaveiro unless and until the injured party is mochel. Moshe said to Hashem as follows: if Miriam is guilty of a bein adam laMakom, then Hashem, you give her mechilah and kapprah; if Miriam is guilty of a bein adam l’chaveiro and it’s all up to me, then I will do the job and pardon her.

It seems a little strange to me to categorize Miriam's wrongdoing did as a bein adam l’chaveiro. One of the ikkarim is that “lo kam navi k’Moshe.” Miriam is not considered guilty of violating ikkarei emunah, as it was only through Hashem’s response to this episode that this ikkar was revealed, but still, once Hashem did reveal that Moshe is in a class by himself, isn’t it also clear that Miriam’s wrongdoing should be considered a bein adam laMakom?

Rambam/Ramban disagree as to whether “rapo yirapeh” is a reshus for those who are not on the level of relying completely on Hashem to cure all ailments, or whether it is part of the necessary hishtadlus a person must make in order to live. Perhaps this was Moshe’s safeik – was he required to do something to cure Miriam, or was he supposed to leave it completely in Hashem’s hands? (Granted that since Miriam was suffering from tzara’as, it is hard to see what Moshe could have done.)

Chasam Sofer writes that part of what we are supposed to remember about this episode with Miriam is the fact that Bnei Yisrael waited for her for seven days before travelling. Chazal tell us that this was a reward / hakaras ha’tov for Miriam having waited a few minutes on the banks of the Nile to see what would happen to baby Moshe after the basket he was in was put in the river. Why is Miriam rewarded davka here for what she did so many years earlier?

Chasam Sofer explains that there are two ways to look at Miriam's actions.  You could say that she waited for baby Moshe simply because she was her sister.  The fact that normally a parent is more concerned for a son/daughter than a sibling, and we know that Yocheved and Amram did not stand and watch what happened, underscores the amount concern and love Miriam had for her little brother.  For that, she deserves some reward.  But there is another way to look at it.  Why did Miriam alone spend the extra few minutes watching what would happen to baby Moshe? Because Miriam more than anyone else believed and had prophesized that this was not just her brother and not just any baby, but this was the moshian shel yisrael – a one of a kind.  The reward for that type of emunah, says the Chasam Sofer, is not something that can be given in tangible goods of olam ha’zeh.  A reward that great can only come in olam ha'ba.

Had it not been for this espisode of Miriam speaking against Moshe, then Hashem would have judged her l'kaf zechus and credited her not just with being a concerned sister, but for having emunah that her brother was the one who would redeem all of Klal Yisrael from galus and for helping to bring that dream to fruition.  However, since Miriam failed to judge her brother l'kaf zechus -- since she spoke against Moshe without giving him the benefit of the doubt -- Hashem did not give her the benefit of the doubt.  Waiting for Miriam for seven days in exchange for her waiting on the banks of the Nile and watching after Moshe is not a reward – it’s a punishment!  Instead of her getting a super reward in olam ha’ba, she was now paid out in the paltry currency of olam ha’zeh for the lesser good of the two.

This, says the Chasam Sofer, is the mussar the Torah is telling us about lashon ha'ra.  The way you look at others and judge them is exactly the way Hashem will look at you and judge you.

That sounds a little scary, so let me end on a more positive note.  In one of R’ Ya’akov Shapira’s (R”Y of Merkaz haRav) sichot he deals with the same question but puts a positive spin on the answer. Hakaras ha’tov can only be fulfilled if a person is fully cognizant of the value of the gift he/she receives. For example, if someone were to give a child a toy made of solid gold, even if the child says thank you, to him/her it’s just a thank you for a shiny new toy. Later in life, when the child understands the true value of that “toy,” he/she hopefully will say thank you again with a different sense of appreciation. Miriam had undoubtedly been thanked for having been the one to look after baby Moshe. However, that thank you was like the thank you of the child who does not understand the full value of his/her gift. It is only after Hashem revealed at this moment that Moshe was in a class by himself, far above any other navi, that the true value of Miriam’s act could be appreciated as well. It was not just her brother that she saved and looked after, not just a future navi, not just the moshi’an shel yisrael, but someone the likes of whom would never exist again. In that light, the thank you and hakaras ha’tov of the past was not sufficient.  Bnei Yisrael had to delay on her account and an expression of hakaras ha’tov that showed renewed appreciation for what she had done.     

yarei m'aveiros b'yado

I must be missing something, but I do not understand the din that someone who davens slichos should serve as shat"z for the rest of the tefilos of the day because "ha'maschil b'mitzvah omrim lo gmor."   Why not say every day that whoever daven shacharis should serve as shat"z for the rest of the day because "ha'maschil b'mitzvah omrim lo gmor?"  Obviously we don't say that.  So why is there such a din by slichos?

Rashi quotes the view of R’ Yosi that the “ha’yarei v’rach ha’leivav” who is given a deferment from battle (20:8) is someone who is afraid because of the “aveiros b’yado.” Doesn’t the peshuto shel mikra fit much better with R’ Akiva’s view that we are speaking “k’mashma’o” (as Rashi writes) about someone who is simply afraid of going to war?  Why does R' Yosi think that's not the fear the pasuk is talking about?  

Sefas Emes: Of course the pasuk is speaking about someone who is afraid to go to war -- even R’ Yosi agrees that’s what the words mean. What R’ Yosi (and Rashi, by quoting him) is explaining is the cause of that fear -- where does it come from? Not from cowardice, but “mei’aveiros b’yado,” because the person is weighed down by aveiros.

Why is that such a bad thing? Isn’t yiras shamayim an ideal?

It could be that the key word here is “b’yado” – a person should not be narrowly focused on their own plight to the exclusion of everyone and everything else.

The Sefas Emes has a different approach, based on an explanation he has in a few places (posted here) as to how Sarah, when challenged by G-d, could deny laughing at the malach’s promise that she would have a son.  He explains that teshuvah can literally erase the past – it is like the wrongdoing never happened. When a person is a true yarei shamayim, it inspires that type of teshuvah. When Sarah laughed, she immediately realized her error and regretted it; Sarah immediately did complete teshuvah. “Lo tzachakti” – Sarah was correct in saying that she did not laugh, because her teshuvah erased it -- “ki yarei’ah,” because she was on a level of yiras shamayim that engenders such great teshuvah.

Someone who is “yarei mei’aveiros b’yado” lacks that true yiras shamayim. To the contrary, the obsession with wrongdoing indicates a failure to do full teshuvah and rise above the past.

divrei rivos b’she’arecha - but not in Yerushalayim

Rashi’s comments on “lo tasur… yamin u’smol” that even if the Chachamim tell you right is left and left is right, you still have to listen. Chasam Sofer explains that Rashi is referring to a case where the Beis Din itself could not resolve the issue and was left with a sfeika d’dina. Let’s take bein ha’shemashos as an example (an admittedly very bad example). Is it day or is it night? Since Beis Din cannot resolve the issue, a person has to be machmir both ways. If you want to daven mincha, then Beis Din will tell you that it’s too late – we treat it as night. If you want to read kri’as shema, then Beis Din will tell you it’s too early – we treat it as day. If you say right, they say left; if you say left, they say right. What if the person comes to Beis Din says that he is absolutely certain that it is day (or that it is night)? He claims he has a mesorah or a proof that clinches the case. If not for Rashi, you might have thought that his claim of vaday outweighs the safeik of Beis Din. Kah mashma lan, this is not the case.

The simple reading of the pesukim is that Beis Din will be able to resolve any question brought to their attention. The Torah describes there being “divrei rivos b’she’arecha,” disagreements outside of Beis Din in Yerushalayim, but when “v’kamta v’alisa el hamakom asher yivchar Hashem,” when you come to the Beis Din in Yerushalayim, the issue gets settled. R’ Shaul Yisraeli asked a very simple question: Why should this be the case? Maybe Beis Din will be divided and the same disputes and disagreements that raged outside will cause an internal split among its members as well?

Anyone who has learned Yerushalmi will appreciate why this would never happen. Almost every page of the Bavli is filled with shakla v’terya, back and forth, as each side struggles to not only marshal proof for its own view, but also to prove its opponent wrong. Chazal themselves tell us “B’machshakim hoshivani” – this is the Talmud Bavli. There is turmoil, disagreement, a darkness in the intellectual battles fought on its pages. The Yerushalmi is far more mellow, for lack of a better word. In the Bavli you sometimes have sugyos where the gemara does not even finish quoting a braysa before there is an interruption and some challenge raised. In the Yerushalmi, an Amora can ask a question on an opposing view and the gemara does not even record an answer – it’s like both sides are happy to have expressed their opinions and leave it at that. "Noam" - eilu talmidei chachamim she'b'Eretz Yisrael (Sanhedrin 24). This is the segulah of toras Eretz Yisrael -- "hamakom goreim." There may be “divrei rivos b’she’arecha,” but that will not spill over to Beis Din, to the dialogue and interaction among and between the Chachamim in Beis Din HaGadol, in Yerushalayim. Somehow, issues will get resolved and harmony will reign.

After telling us (17:8) “V’kamta v’alisa el hamakom **asher yivchar Hashem Elokecha bo,**” the Torah echoes the same phrase again at the conclusion of the story, commanding us to follow the psak issued "min ha'makon ha'hu **asher yivchar Hashem.**" (17:10)  Why the repetition and reiteration of this phrase "asher yivchar Hashem?"  Netziv explains that if Beis Din must be followed simply because they are the greatest scholars, the most brilliant lamdanim, an individual might argue that in fact he is a greater scholar or that he is the more brilliant lamdan.  The Torah therefore tells us that's not the reason to follow Beis Din.  The reason why their view trumps all others is because they are privileged to be sitting in the place "asher yivchar Hashem."  There is special siyata d'shemaya that comes from the place where there is hashra'as haShechina.  It's not about who you are, but it's about where you are -- in Yerushalayim, near the Mikdash, in a place above all others. 

(It seems that v'nahapoch hu, that in our times it is davka in Eretz Yisrael that there seems to be the greatest friction between factions within Klal Yisrael, be it dati and chiloni, or datli leumi and chareidi, or between any of the many other flavors in the ice cream shop.   Someone who had lived in Eretz Yisrael once remarked at how beautiful it is here in the US, where by and large there is less friction between the various groups within a single community.  My feeling is that there is less friction perhaps because we are so pareve about everything -- we lack the same fervor and passion as our brothers in Eretz Yisrael.  Be that as it may, while we still have a long way to go, I think we see davka in Eretz Yisrael, at times of need, the greatest achdus.  Remember when those three teens were kidnapped?  Even Yair Lapid davened!  Every Jewish heart was united in prayer.  I don't recall something like that ever taking place in chutz la'aretz.  Underneath all the squabbling and fighting there is a unity that I don't think has a parallel in any other Jewish community or in any other nation.  We just need to work on bringing it out when there is no tragedy or crisis.)

aseh doche lo ta'aseh

1. Our parsha (16:8) tells us that matzah is eaten for six days; another pasuk tells us it is eaten for seven days.  Rashi (in his first answer) explains that matzah made from chadash can be eaten for the last six days of Pesach, but not on the first day before the korban ha'omer is offered. 

Gur Aryeh writes that Rashi is alluding to the chiddush din quoted in Tosfos (Kiddushin 38) that we do not say that the mitzvas aseh of matzah can be doche the lo ta'aseh of chadash.  Tosfos gives two reasons why not: 1) mitzvas matzah was commanded before matan Torah and therefore has a special status; 2) if you allow a person to eat a k'zayis for the sake of the kiyum mitzvas aseh he might eat more than that, which would not be allowed.  (It sounds like this second answer holds that m'dorasya matzah would be doche chadah, but m'derabbanan we do not allow a person to chance it.  It also assumes that if you eat more than the shiur required to fulfill the mitzvah, there is either no kiyum mitzvah at all, or that a kiyum mitzvah without a tzivuy is not enough to be doche a lav.)  The Gur Aryeh offers his own reason.  The only time we say aseh doche lo ta'aseh is when it is impossible to fulfill both -- there is a direct clash between the two.  For example, it is impossible for there ever to be a scenario of yibum that does not also entail a clash with the issur of eishes ach (whether yibum works through aseh doche lo ta'aseh or some other mechanism is a topic for some other time).  Here, even if a person only has one matzah and it happens to be made of chadash, the Maharal does not see that as a clash.  I think what he means is that the mitzvah of chadash does not logically preclude fulfilling the mitzvah of matzah.  You may run into a scenarios where practically you cannot fulfill one without violating the other, but a practical roadblock is not enough. 

I am a little confused by one point: is the fact that we don't say that matzah can be doche chadash derived from the fact that the pasuk says to eat matzah for six days?  The rule the Maharal invokes, i.e. that you only say dechiya when there is an inevitable clash. is not unique to matzah -- it is a general rule that applies in every case of aseh doche lo ta'aseh.  So why do we need a special limud here to tell us that matzah is not doche chadash? 

2. The gemara (Sanhedrin 71) quotes R' Eliezer's view that if even one mezuzah is found in an ir ha'nidachas it is enough to salvage the city and spare it from destruction.  (There is a view in Chazal that there can never be an ir ha'nidachat.  The L. Rebbe is quoted as saying that if he heard a city was going to be declared an ir ha'nidachat, he would go there and put a mezuzah up on someone's door, so the city would never be destroyed.  There is a lesson there that goes beyond the halachos of ir ha'nidachas.)   The Toras Chaim and many other Achronim ask why don't we apply the rule of aseh doche lo ta'aseh?  Why does fulfilling the mitzvah of destroying the city allow for the burning of the mezuzah? 

One approach is that you only say aseh doche lo ta'aseh when the entire aseh is being fulfilled.  Here, burning the single mezuzah is just part of the larger mitzvah, which is to destroy the entire city.  (Whether this chiddush is true and why it is true is something to look into.)

Once upon a time I did a post on the Ohr Sameiach hil chameitz ch 6 who writes that you only say aseh doche lo ta'aseh on an issur gavra, not an issur cheftza.  The question of Tos quoted above regarding matzah being doche chadash must assume, as the Ohr Sameiach discusses, that chadash is not an issur cheftza -- chadash is inherently heter, just cannot be eaten before the korban ha'omer is brought.  The lav of "lo ta'aseun kein l'Hashem Elokeichem" which prohibits burning the mezuzah is an issur cheftza.  Based R' Eliyahu Baruch Finkel suggests that therefore is not pushed aside by the chovas hagavra of destroying the ir ha'nidachas.

the missing words in "atah yatzarta"

On the rare occasion of Shabbos Rosh Chodesh we daven "atah yatzarta..." for tefilas musaf.  The Aruch haShulchan (425:2) makes an interesting point:

ודע שמעולם תמהתי על הנוסח שלנו, שבסוף "אתה יצרת" שאחר ל"מחילת עון" אומרים: "כי בעמך ישראל בחרת... ושבת קדשך..." – למה אין אומרים "קדשנו במצותיך ותן חלקנו... והנחילנו... וינוחו בו ישראל מקדשי שמך, כי בעמך ישראל..."? והרי כל יום טוב שחל בשבת, וראש השנה ויום הכיפורים שחלו בשבת, אומרים בסוף הברכה האמצעית נוסח זה, שזהו תורף קדושת שבת. ולמה לא יאמרו זה בראש חודש שחל בשבת? ובנוסח ספרד ישנו באמת זה הנוסח. ולעניות דעתי בנוסח אשכנז חסר זה מהדפוס, ואני נוהג לאומרה, ואין שום טעם שלא לומר זה. ולא מצאתי מי שהעיר בזה.