vigilante halacha

The Torah records the reaction of Klal Yisrael to the presence of the Shechina coming into the Mishkan: “Va’yar kol ha’am va’yaronu va’yiplu al p’neihem” (9:24) – the people sang praises to Hashem. “What song did they sing?” asks the Sefas Emes. Why is there no record of it? He answers that we already know the words to the song -- they sang shiras ha’yam, the same song we read on the last days of Pesach. This was a return to former glory. The downfall and tragedy of cheit ha’eigel which the Mishkan was intended as a kapprah for was now past history. The joy and spiritual ecstasy that marked yetzi’at Mitzrayim and the splitting of Yam Suf were now regained.

I would take the connection the Sefas Emes makes between shiras ha’yam and the Mishkan a step further. The Mishkan was G-d’s “home” so to speak, his permanent address. Bnei Yisrael took the inspiration of shirah, the response to a one-time miracle, and they incorporated it into the Mishkan, the permanent and day to day. This was a fulfillment of “zeh K-li v’anveiyhu,” the word “anveyhu,” as Onkelus explains, coming from the same root as “naveh,” a house. Bnei Yisrael at the time of shirah wanted to take their enthusiasm of the moment and give it a permanent home. Our parsha proves that they succeeded.

This is our post-Pesach job: to take the enthusiasm of shirah, the enthusiasm of the chag, and incorporate it now into our day to day. 

On to Parshas Shmini, with apologies to any readers in Eretz Yisrael who are a week ahead, or maybe I should say that we are a week behind?  What to do if you travel back to Eretz Yisrael after spending Pesach in chutz la'arertz -- how do you make up the lost parsha?  Do you need to?  Something to work on...


There is a question raised by the Ohr haChaim that I think captures a tension inherent in Shmini. The Ohr haChaim (end of d”h “hein hayom”) raises the following issue: is there an issur for a student to pasken a shayla for himself in the presence of his teacher? The halacha is that if Reuvain comes and asks Shimon a shayla, Shimon must pass on answering and defer to his rebbe.  There is an issur of being moreh halacha bifnei rabbo.   But here it’s not Reuvain asking Shimon – it’s Shimon figuring out viz a viz his own behavior what to do. Does that make a difference? The Ohr haChaim suggests that our parsha provides the answer. Aharon decided on his own, without consulting with Moshe, his rebbe, that he and his children should not to eat the korban chatas of rosh chodesh.

Whether the Ohr haChaim’s conclusion is correct or what the lomdus behind the question is (perhaps the issue depends on what the reason for the issur of being moreh halacha bifnei rabbo is. If it is a din in kavod harav, then whether one is paskening for oneself or others should make little difference; however, if it is because the talmid may not be able to communicate properly, as the simple reading of the sugya in Eiruvin 62 suggests, than perhaps when one is dealing only with one’s own private behavior and not communicating with others there would be no issur. See Aruch haShulchan Y.D. 242:8-12 for a discussion of the different reasons) is not my topic for now. What I want to focus on is the sharp contrast between the positive reaction to Aharon acting independently, “vayishma Moshe vayitav b’einav,” and the response of Hashem to Nadav and Avihu’s actions. At least according to one view in Chazal, Nadav and Avihu were guilty of no more than being moreh halacha b’fnei rabbo, of deciding what to do without consulting Moshe. What’s the difference between their deciding for themselves that they should offer ketores and Aharon’s deciding for himself that the korban chatas of rosh chodesh should be eaten?

Whatever the answer is (and there are a number of approaches possible), I think this is the key question that the parsha begs us to ask, the focal point around which the whole episode of Nadav and Avihu’s death and the follow up centers. In light of the Ohr haChaim I would say that the reason for the retelling of what happened to the chatas is not to teach us a din in hilchos kodshim, but to force is to draw a distinction (or distinctions) between independent action that has no place in Torah and independent action that should be valued and praised. (Just as, if one assumes that Nadav and Avihu are guilty of an issur hora’ah, the focus of the parsha of shtuyei ya’ayin may be the issur of hora’ah while drunk, not the issur avodah.) Not every “vigilante” halachic decision should be met with disapproval. Sometimes acting independently is necessary and warranted. The key is to figure out the when, where, and how.

Moshe may have been the rebbe and Aharon the talmid, but interestingly it was Aharon, not Moshe, who grasped that the chatas of rosh chodesh should not be eaten. The Ohr haChaim (in a different piece) wonders in fact how Moshe could have missed such an obvious distinction between koshei sha’ah and kodshei doros.  An important lesson: no rebbe, not even Moshe Rabeinu, has a monopoly on truth and is right at all times and places.  

The ambiguity of Aharon’s role – subservient to Moshe or someone who can act on his own authority – comes across in the next parsha. On the one hand, the plain reading of the text “vayidaber Hashem el Moshe v’el Aharon leimor…” (11:1) suggests an equivalence between Moshe and Aharon, yet Rashi tells us that the pasuk means that Hashem spoke to Moshe who in turn relayed the information to Aharon, a denial of any such equivalence. Of course Aharon was not Moshe’s equal, yet I think the plain reading deliberately obscures the distinction here and necessitates a “peirush Rashi” because the parsha wishes to underscore that there are times when in face a talmid can measure up to the greater personality of the rebbe and attain – momentarily, in a given context – equality and independence.