a war for kedushas yisrael

The Midrash comments on the pasuk וַיִּשְׁלַח אֹתָם מֹשֶׁה אֶלֶף לַמַּטֶּה לַצָּבָא אֹתָם וְאֶת פִּינְחָס בֶּן אֶלְעָזָר הַכֹּהֵן לַצָּבָא:

אָמַר הַקָּדוֹשׁ בָּרוּךְ הוּא לְמשֶׁה: נְקֹם נִקְמַת, אַתָּה בְּעַצְמְךָ, וְהוּא מְשַׁלֵּחַ אֶת אֲחֵרִים, אֶלָּא מִפְּנֵי שֶׁנִּתְגַּדֵּל בְּאֶרֶץ מִדְיָן אָמַר אֵינוֹ בְּדִין שֶׁאֲנִי מֵצֵר לְמִי שֶׁעָשָׂה בִּי טוֹבָה, הַמָּשָׁל אוֹמֵר בּוֹר שֶׁשָּׁתִיתָ מִמֶּנּוּ אַל תִּזְרֹק בּוֹ אֶבֶן. וְיֵשׁ אוֹמְרִים שֶׁאֵינָהּ זוֹ מִדְיָן שֶׁנִּתְגַּדֵּל בָּהּ משֶׁה, שֶׁזּוֹ בְּצַד מוֹאָב וְהִיא חֲרֵבָה עַד עַכְשָׁו, לָמָּה שָׁלַח פִּינְחָס, אָמַר, מִי שֶׁהִתְחִיל בְּמִצְוָה הוּא גוֹמֵר, הוּא הֵשִׁיב אֶת חֲמָתוֹ וְהִכָּה אֶת הַמִּדְיָנִית, הוּא יִגְמֹר מִצְוָתוֹ.

Why is there a hava amina that Moshe should have personally taken charge of the war against Midian? We don't find, for example, that Moshe was personally responsible to wage war against Amalek. At the end of Beshalach (17:9) the Torah tells us וַיֹּאמֶר מֹשֶׁה אֶל יְהוֹשֻׁעַ בְּחַר לָנוּ אֲנָשִׁים וְצֵא הִלָּחֵם בַּעֲמָלֵק and Moshe is not criticized for appointing Yehoshua. Why is the battle against Midian different?

When the officers returned from battle, they brought כְלִי זָהָב אֶצְעָדָה וְצָמִיד טַבַּעַת עָגִיל וְכוּמָז as a gift to the mishkan as a kaparah. Targum Yonasan writes:

ובכל דא חס לן למיתלי עינינן ולא אסתכלנן בחדא מנהן דלא למתחייבא בחדא מנהין ולא נמות במיתותא דמייתין בה רשיעיא לעלמא דאתי

The soldiers did not even look at the women of Midian. Considering that yefat to'ar is permissible at time of war, this would seem to be a very stringent and unnecessary chumra. Why was such a standard imposed here? (See Tos Shabbos 65 and this post.)

This past week the Torah world lost R' Avraham Yitzchak Kilav, a dayan, R"Y in Merkaz haRav, and a rosh Kollel. He discusses these questions and explains that the fight against Midian was not a battle over territory, a battle of conquest or in defense of Eretz Yisrael. The battle against Midian was a battle for kedushas Yisrael. The Midrash says:

אָמַר משֶׁה רִבּוֹן הָעוֹלָמִים, אִם הָיִינוּ עֲרֵלִים, אוֹ עוֹבְדֵי עֲבוֹדַת כּוֹכָבִים, אוֹ כּוֹפְרֵי מִצְווֹת, לֹא הָיוּ שׂוֹנְאִין אוֹתָנוּ וְאֵינָן רוֹדְפִין אַחֲרֵינוּ אֶלָּא בִּשְׁבִיל תּוֹרָה וּמִצְווֹת שֶׁנָּתַתָּ לָנוּ, הִלְכָּךְ הַנְּקָמָה שֶׁלְּךָ לָתֵת נִקְמַת ה׳ בְּמִדְיָן.

Midian's weapons, so to speak, were giluy arayos and avodah zarah. Their goal was to rip down the seyagim that protect our identity.  Therefore, when it came to this wa,r the normal rules of milchama did not apply. There was no heter of yefat to'ar because the whole point of this battle was to fight against the exposure to arayos that Midian used to undermine us. In this war sheivet Levi had to go out to battle as well, and the soldiers chosen were אנשים – צדיקים (Rashi 31:3), because these are the people who represent and preserve the kedusha of Klal Yisrael. And finally, Moshe himself should have been personally involved in the battle here. Rashi comments on the use of זה הדבר in the parsha of nedarim at the start of our sedra:

– משה נתנבא בכה אמר ה׳ כחצות הלילה וגו׳ (שמות י״א:ד׳), והנביאים נתנבאו בכה אמר, מוסף עליהם משה שנתנבא בלשון זה הדבר.

The neviim see the mitzvos that we have as they are, but Moshe sees beyond that and can grasp the parsha of nedarim, the ability of a person to prohibit that which is otherwise permissible in order to extend seyagim and thereby add kedusha. Midiam sought to undo the boundaries between Klal Yisrael and the outside world, so it is only fitting that Moshe, who was able to perceive that sometimes there is a need to even add boundaries, should be the one to personally deal with them.

exemptions from the draft

12,000 soldiers, 1000 from each sheivet, went out to war against Midian.  אֶלֶף לַמַּטֶּה אֶלֶף לַמַּטֶּה לְכֹל מַטּוֹת יִשְׂרָאֵל תִּשְׁלְחוּ לַצָּבָא.  Rashi comments based on Sifri לכל מטות ישראל – לרבות שבט לוי.   (Parenthetically: Shouldn't there be 13,000 then?  Mizrachi answers that Ephraim and Menashe count as 2 shevatim viz a viz getting nachala in Eretz Yisrael, but here they are counted as one.  See Gur Aryeh.  The Sefas Emes in Likutim has a chiddush gadol that the 12,000 are apart from sheivet Levi.  The entire sheivet Levi -- all 22,000 of them -- actually reported for duty to escort the aron.)

Unless you've had your head in the sand the past few weeks you know that the issue of the exemption of hareidi yeshiva students from the draft in Israel is once again being debated.  One of the most widely cited sources on the issue is the Rambam at the end of hil shemita, who exempts sheivet Levi from military duty:

ולמה לא זכה לוי בנחלת ארץ ישראל ובביזתה עם אחיו מפני שהובדל לעבוד אתה׳ לשרתו ולהורות דרכיו הישרים ומשפטיו הצדיקים לרבים שנאמר יורו משפטיך ליעקב ותורתך לישראל. לפיכך הובדלו מדרכי העולם לא עורכין מלחמה כשאר ישראל ולא נוחלין ולא זוכין לעצמן בכח גופן. אלא הם חיל השם שנאמר ברך ה׳ חילו. והוא ברוך הוא זוכה להם שנאמר אני חלקך ונחלתך:

Rambam continues and writes that not only is Levi exempt, but anyone who wants to take on the role of full time Torah study/teaching like Levi is exempt as well:

ולא שבט לוי בלבד אלא כל איש ואיש מכל באי העולם אשר נדבה רוחו אותו והבינו מדעו להבדל לעמוד לפני ה׳ לשרתו ולעובדו לדעה את ה׳ והלך ישר כמו שעשהו האלהים ופרק מעל צוארו עול החשבונות הרבים אשר בקשו בני האדם הרי זה נתקדש קדש קדשים ויהיה ה׳ חלקו ונחלתו לעולם ולעולמי עולמים ויזכה לו בעה"ז דבר המספיק לו כמו שזכה לכהנים ללוים. הרי דוד ע"ה אומר ה׳ מנת חלקי וכוסי אתה תומיך גורלי:

It seems that Rambam disagrees with Rashi's position that even sheivet Levi went to war.  

The two views find their roots in different girsaot in the Sifrei.  The Sifri as we have it reads להביא את שבטו של לוי; but the GRA changes the girsa to להוציא שבט לוי.

(The Rogatchover suggests that the battle against Midyan was an act of nekama, not technically a milchama, so perhaps Rashi here is not a proof as to whether sheivet levi was obligated to enlist in other cases.  The downside of this approach is that it means the Sifri cannot serve as a makor for the Rambam, and so one must find some other source for this tremendous chiddush that Rambam advances.)

Were the issue that simple : )

The problem is that it is hard to take this Rambam at face value.  Rambam writes in hil melachim ch 7:

ואחר שחוזרין כל החוזרין מעורכי המלחמה. מתקנין את המערכות. ופוקדים שרי צבאות בראש העם. ומעמידין מאחור כל מערכה ומערכה שוטרים חזקים ועזים. וכשילין של ברזל בידיהם. הרוצה לחזור מן המלחמה הרשות בידן לחתוך את שוקו. שתחלת נפילה ניסה. במה דברים אמורים שמחזירין אנשים אלו מעורכי המלחמה במלחמת הרשות. אבל במלחמת מצוה הכל יוצאין ואפילו חתן מחדרו וכלה מחופתה:

אחד המארס את הבתולה. ואחד המארס את האלמנה. וכן אם נפלה לו יבמה אפילו חמשה אחים ומת אחד מהן כולן חוזרין. קדש אשה מעכשיו ולאחר שנים עשר חדש ושלם הזמן במלחמה חוזר ובא לו:

המחזיר את גרושתו. והמארס אשה האסורה עליו. כגון אלמנה לכהן גדול. גרושה וחלוצה לכהן הדיוט. ממזרת ונתינה לישראל. בת ישראל לממזר ולנתין. אינו חוזר:

The Rambam writes that הכל יוצאין - everyone goes out to war, even a chassan and kallah. He speaks of  כגון אלמנה לכהן גדול. גרושה וחלוצה לכהן הדיוט going to battle. Were there a blanket exemption for members of sheivet Levi from war, what is the kohen gadol or hedyot doing here?

Furthermore, the gemara (Kid 21) discusses whether a kohen is permitted to take a yefat toar.  The Ramban paskens (8:4)

הכהן מותר ביפת תואר בביאה ראשונה. שלא דברה תורה אלא כנגד היצר. אבל אינו יכול לישאנה אחר כך מפני שהיא גיורת

Again, how does this make sense if members of sheivet Levi do not go to war?

Not only do we see that kohanim serve, but we find in Tanach that בניהו בן יהוידע, who was a kohen (Divrei haYamaim I 12:28), was appointed by Shlomo as a general in charge of his army (Melachim I 2:35)!

Finally, and more fundamentally, it is strange that the Rambam brings up this exemption of sheiveit Levi from war at the end of hil shemita but makes no mention of it in hil melachim where he codifies all the other laws that pertain to battle.    

Some argue based on this consideration that the Rambam at the end of hil shemita is not meant to be taken as a halachic statement.  The Ramban often concludes a sefer with a mussar or philosophical point.  Here too, the Rambam is just setting a goal of a high level of talmud torah for us to aspire to, not lay down the practical rules of who should or should not go out to war.  

If so, there is no argument between Rashi and the Rambam, and this Rambam cannot serve as a source to exempt yeshiva students from the draft.

Others do accept that there is an exemption from battle for sheivet levi, but qualify that exemption in some way so as to allow a scenario of kohanim participating in battle. You can read this article for a rundown of the various chilukim that aim to get to this result.  Since I have a day job and limited time, I'll just mention one: When an army goes to war, not everyone gets called up at once and not everyone is deposited on the front lines at once.  The army drafts based on its needs.  The Brisker Rav (Sota 43) therefore suggests that in principle, sheivet Levi has a chiyuv to participate in war like anyone else.  What the Rambam in hil shemita means is that given the option, we defer drafting kohanim and leviim until we have exhausted all other options.  

It's interesting that this Rambam that everyone quotes as the source to exempt people from battle never uses the words פּטורים מללכת למלחמה!  What he says is לא עורכין מלחמה כשאר ישראל - sheivet levi does not go to war like everyone else.  There is a big difference between saying that levi does not going to war, period, full stop, and saying that they do not going to war **like other people**.  I would certainly hope that when bnei Torah go to war, they don't go like everyone else.  I think the plain meaning of the words is exactly like the chiddush of the Brisker Rav.  Sheiveit levi does go to war, but the criteria for when and how they are drafted is different than that of other shevatim, as indeed it should be.   

On a practical level, it's important to also mention that one thing is certain: the burden of להבדל לעמוד לפני ה׳ לשרתו is not a light one.  For example,  it seems reasonable to me to assume that the Rambam's standard does not allow for a multi-week bein ha'zemanim vacation away from sedarim.  להבדל לעמוד לפני ה׳ לשרתו is a full time 24x7 occupation, a life of total dedication to Torah and ruchniyus.  Thus, even if one accepts the theoretical possibility of there being an exemption from the draft, practically speaking it is hard to see how the bar set by the Rambam can be met by any more than a small minority of 18-19 year olds.  I haven't met too may young men who have achieved such lofty heights of holiness at such a young age, but then again, maybe my experience is too limited. 

It's also worth remembering that at the end of the day, many of those who leave beis medrash to serve also share the aspiration להבדל לעמוד לפני ה׳ לשרתו.  Our ultimate ideals are the same, even if we disagree sharply in the messy practicalities of how to achieve them.

yishuv ha'aretz -- without machlokes; should Rachav have been spared?; an Ohr haChaim that speaks to our times

A simple question: Why didn't Moshe tell the members of the tribes of Reuvain, Gad, and Menashe that they cannot settle in Eiver haYarden because by doing so they would be forgoing the mitzvah of kibush/yishuv Eretz Yisrael?   

Seforno answers (32:33):  כדי שלא להכנס במחלוקת הסכים משה לדבריהם

I don't understand.  If the Bnei Reuvain and Gad did not want to observe Shabbos, would Moshe have accepted that and given in to avoid machlokes?  If they didn't want to put on tefillin, would Moshe have accepted that to avoid machlokes?  Aderaba, we see in the end of of Sefer Yehoshua (ch 22) that when the Bnei Reuvain and Gad built a mizbeiach in Eiver haYarden which the other tribes mistakenly thought was an act of rebellion against Hashem , they did not just let it go.  They immediately called Reuvain and Gad to task and demanded an explanation.  Why then here did Moshe give in here to avoid machlokes?

I think what you see from here is that the mitzvah of yishuv ha'aretz in particular is dependent on not having machlokes.  We are in the three weeks, and we all know that churban bayis sheni happened because there was machlokes and sinas chinam.  We were be banished from the land because machlokes and yishuv ha'aretz are tartei d'sasrei.  The two cannot go together.  Eretz Yisrael is the fulfillment of our dream to live as a nation.  If we can't get along with each other and there is no unity, then how are we a nation?  If we are not a nation, why do we deserve a homeland?  

Moshe gave in to make peace because yishuv ha'aretz by force or coercion would defeat the whole purpose of the mitzvah.  It can only be done b'shalom.  

2) Ohr HaChaim has a comment that is mamash ruach hakodesh on the pasuk (33:54) and speaks to our times:

 וְאִם־לֹ֨א תוֹרִ֜ישׁוּ אֶת־יֹשְׁבֵ֣י הָאָ֘רֶץ֮ מִפְּנֵיכֶם֒ וְהָיָה֙ אֲשֶׁ֣ר תּוֹתִ֣ירוּ מֵהֶ֔ם לְשִׂכִּים֙ בְּעֵ֣ינֵיכֶ֔ם וְלִצְנִינִ֖ם בְּצִדֵּיכֶ֑ם וְצָרְר֣וּ אֶתְכֶ֔ם עַל־הָאָ֕רֶץ אֲשֶׁ֥ר אַתֶּ֖ם יֹשְׁבִ֥ים בָּֽהּ׃

He makes two points.  First, אין והיה אלא לשון שמחה.  You think that not clamping down and finishing off the enemy will bring you simcha, וְהָיָה֙ אֲשֶׁ֣ר תּוֹתִ֣ירוּ מֵהֶ֔ם.  Maybe you think it will be to your benefit in some way, e.g. you have cheap labor, you buy favor with the EU and US, etc. Forget about it -- it's not going to work.

Secondly, if you give the enemy a foothold, not only will you have problems in the areas that you leave aside for them, whether it is Gaza or Area C or anyplace else, but you will have problems in the areas that you have conquered, the areas that you think are under your control now.  The problems will be in הָאָ֕רֶץ אֲשֶׁ֥ר אַתֶּ֖ם יֹשְׁבִ֥ים בָּֽהּ, whether it be Tel Aviv, Yerushalayim, or elsewhere c"v.

3) The Yalkut Shimoni writes an amazing chiddush on this same parsha:

אָמַר הַקָּדוֹשׁ בָּרוּךְ הוּא לְיִשְׂרָאֵל, אֲנִי אָמַרְתִּי (דברים כ׳:י״ז) ״כִּי הַחֲרֵם תַּחֲרִימֵם״, וְאַתֶּם לֹא עֲשִׂיתֶם כֵּן אֶלָּא (יהושע ו׳:כ״ה) ״וְאֶת רָחָב הַזּוֹנָה״ וְגוֹ׳ הֶחֱיָה״ וְגוֹ׳, הֲרֵי יִרְמִיָּה בָּא מִבָּנֶיהָ וְעוֹשֶׂה לָכֶם דְּבָרִים שֶׁלְשִׂכִּים בְּעֵינֵיכֶם וְלִצְנִינִם בְּצִדֵּיכֶם, לְפִיכָךְ צָרִיךְ הַכָּתוּב לוֹמַר ״דִּבְרֵי יִרְמִיָּהוּ בֶּן חִלְקִיָּהוּ״.

According to the Yalkut, its not the terrorist in Jenin that the pasuk is warning us about, but rather it's Yirmiyahu haNavi who came from the lineage of Rachav.  This is the thorn in our side that will plague us because we don't eradicate the sheva umos. 

(Once upon a time I quoted from R' Tzadok that this is why the pasuk says  והיה, a lashon of simcha.  The tochacha of the navi, which is a painful thorn in our side, is what eventually drive us to do teshivah and bring us out of galus.)

Rav Baruch Mordechai Ezrachi, who needs a refuah shleima and learning his Torah should be zechus to bring that about, quotes the Yalkut Shimoni in Sefer Yehoshua (2:11):

אמר הקב״ה לרחב את אמרת כי ה׳ אלקיכם הוא אלקים (יהושע ב׳:י״א) ניחא בארץ שמא בשמים ממעל את אמרת מה שלא ראית בעיניך חייך שבנך עומד ורואה מה שלא ראו הנביאים כמד״א נפתחו השמים ואראה מראות אלקים (יחזקאל א׳:א׳)

How can we square the two views?  On the one hand, we see from Rachav is given lavish praise for her believing in Hashem, and as a result is rewarded by having among her offspring Yechzkel haNavi, who saw the maaseh merkava, beyond what all other nevi'im saw.  Yet on the other hand, the Yalkut in our parsha is critical of Bn"Y for leaving her alive (the Yalkut must hold that she did not have giyur)?  

He writes that it's no stira. וְהָיָה֙ אֲשֶׁ֣ר תּוֹתִ֣ירוּ מֵהֶ֔ם לְשִׂכִּים֙ בְּעֵ֣ינֵיכֶ֔ם וְלִצְנִינִ֖ם בְּצִדֵּיכֶ֑ם is like a law of nature.  There may be good reason for Rachav to be made an exception to the rule, but rules don't work that way.  Barring a miracle, if Rachav were to jump off the wall of Yericho, the law of gravity would assert itself and she would fall to the ground no matter that she had hidden the spies or that she had professed belief in Hashem.  So too, no matter how worthy she may have been, the outcome of sparing her life would inevitably be painful.  That pain may come in the form of a prophet like Yirmiyahu and not c'v a terrorist from Jenin, but pain of some sort is inescapable and unavoidable.  

4) That section of the parsha ends off  וְהָיָ֗ה כַּאֲשֶׁ֥ר דִּמִּ֛יתִי לַעֲשׂ֥וֹת לָהֶ֖ם אֶֽעֱשֶׂ֥ה לָכֶֽם.  Here too, we have the word וְהָיָ֗ה, and אין והיה אלא לשון שמחה, which again seems very difficult in this context.  How can there be any simcha in  אֶֽעֱשֶׂ֥ה לָכֶֽם?  The Ohr haChaim is silent here, but the Agra d'Kallah comes and helps us out, albeit a bit on the desrushy side.  He explains that the original plan at the time of yetzias Mitzrayim was for Hashem to take care of the fighting for us and for us to sit back and watch the show.  For better or worse, we chose the path of doing things for ourselves.  Hashem did not command us to send meraglim to spy out how to conquer the land because it was not necessary, but we chose to do so.  The challenge is for us to recognize that even when we seem to be doing things ourselves, behind it all is still yad Hashem -- not us.  The only difference is whether we have a nes nigleh or nes nistar.  The pasuk promises וְהָיָ֗ה כַּאֲשֶׁ֥ר דִּמִּ֛יתִי לַעֲשׂ֥וֹת לָהֶ֖ם, what I Hashem planned to do myself to those nation, אֶֽעֱשֶׂ֥ה לָכֶֽם, I will do through you.  I will bring about the same result, but couch it in the efforts you put forward.  He writes:

 ויהיה כאשר דמיתי לעשות להם אני בעצמי ואתם תעמדו מנגד, יומשך הענין שאעשה לכם בעשייתכם בטבע בחרב ובחנית במלחמה טבעיות, ואף על פי כן אני העושה וזה יהיה הנסיון, והבן מאוד

This is the time of year to work on the  והבן מאוד.

proper motivation

Ramban asks to why the din of kashering kelim is mentioned only after the war with Midyan and not earlier, after Bnei Yisrael waged war with Sichon and Og.  Ramban answers (based on Chulin 17) that during the battles for kibush ha'aretz, such as the battles against Sichon and Og and the future battles of Yehoshua, there was a heter to eat trief, so there was no need to kasher.  The war against Midyan, however, unlike those others wars, was not a war to take territory, of kibush.  It was a war of nekama, to punish Midyan for the sin of causing Bn"Y to succumb to the temptation for znus.  Therefore, it was only here that the halachos of kashering are mentioned.  (see here, here, here)

Sefas Emes suggests that the din of kashering was taught here because it fits with the larger lesson Moshe weas trying to convey.  The gemara explains why Moshe was angry when he saw the soldiers returning with booty:

יקצף משה – אמר להם, שמא חזרתם לקלקולכם הראשון, אמרו לו, לא נפקד ממנו איש, אמר להם, אם כן כפרה למה, אמרו לו, אם מידי עבירה יצאנו, מידי הרהור לא יצאנו

Even though not a single soldier died in battle, Moshe was not satisfied that something was not rotten, that the grabbing of spoils was not indicative of a rehash of sin.  Even though there was no overt wrongDOING he could point to, Moshe was concerned lest the people be guilty of hirhurei aveira, wrong THINKING.

This is the lesson of giulei Midyan.  Even though there is no visible trief in a pot, it still must be kashered becauase of invisible taam that remains latent within it.  So too, taught Moshe, it's not enough to just look at surface actions -- one must dig deeper and examine the thoughts latent in one's heart.  

I think we've covered this is previous years, and just want to add an additional point this year and try to connect this point with another idea and see how it works.

Hashem commanded Moshe:

נְקֹ֗ם נִקְמַת֙ בְּנֵ֣י יִשְׂרָאֵ֔ל מֵאֵ֖ת הַמִּדְיָנִ֑ים אַחַ֖ר תֵּאָסֵ֥ף אֶל־עַמֶּֽיךָ

Moshe's own death hinged on the completion of this war against Midyan. Despite knowing this, Moshe immediately jumped into action.  Rashi comments:

 אף על פי ששמע שמיתתו תלוייה בדבר, עשה בשמחה ולא איחר.

Simple pshat in Rashi: even though Moshe could have postponed his death indefinitely by pushing off this war, he didn't do so.  He acted with the same zerizus and alacrity as with any other mitzvah (see Gur Aryeh, Mizrachi).

Asks the Sefas Emes (5650): what's the hava amina that Moshe could have kicked the can down the road and cheated death?  נְקֹ֗ם נִקְמַת֙ בְּנֵ֣י יִשְׂרָאֵ֔ל מֵאֵ֖ת הַמִּדְיָנִ֑ים is a mitzvah!  Once told by Hashem to avenge Bn"Y and wage war against Midyan, surely Moshe would not deliberately be mevateil a mitzvah and not act on it.  

Sefas Emes answers (and I'm adding my own spin to his approach) that when going to war, when going to take revenge, there is a very important condition that has to be met before you unholster your guns, so to speak.  Ramban in P' Lech Lecha asks why it is that the Mitzrim were punished for enslaving Bn"Y when Hashem had told Avraham that his children would be punished by being forced into servitude.  The Egyptians were fulfilling the nevuah, the ratzon Hashem!  Ramban explains that ain hachi nami, had they done so lishma, that excuse would work.  However, the reality is that they enslaved Bn"Y for their own ends alone.  Without the l'shem shamayim, it's not a kiyum of ratzon Hashem -- it's abuse and torture.  The Chofetz Chaim similarly explains that when Shaul haMelech failed to kill Agag, the navi Shmuel accuses him, "VaTa'as ha'ra b'einei Hashem," of doing wrong.  You would think that Shaul's sin was in NOT doing what he was supposed to -- killing every member of Amalek -- not what he actually did do. Yet, that's not what the navi tells us.  The sin is "VaTa'as," what Shaul did, because once he allowed his own cheshbonos and thoughts of right and wrong to enter into the equation, he was following his own agenda, and not purely the ratzon Hashem.  To wipe out a nation based on your own agenda is genocide, not a mitzvah.  We also find by the cheit ha'eigel, before the Leviim took up arms Moshe told them, "Mi l'Hashem ei'lei," (32:26, see Netziv), as only those motivated l'shem shamayim had a right to participate.  You see from these sources and more that even when there is a heter, even when there is a mitzvah to cause harm, it has to be done carefully for the right reasons.

The Shem m'Shmuel is medayek in Rashi at the beginning of Pinchas that talks about the way the other shevatim slandered Pinchas: הראיתם בן פוטי זה, בן שפיטם אבי אמו עגלים לעבודה זרה יהרוג נשיא שבט מישראל.  Why does Rashi mention specifically that Yisro "FATTENED" cows for avodah zarah?  Why not zero in more directly on the fact that he OFFERED cows to avodah zarah?  Sm"S explains that whether a cow is fat of skinny makes no inherent difference to the offering; it's just a matter of appearances.  The shevatim were accusing Pinchas of being someone superficial, someone lacking depth, someone for whom appearances matter more than anything else.  When you pull out your sword to kill, there has to be more than that.  You have to reflect on your own motives, you have to reflect on the motives of the other party if you are acting with kana'us on the assumption that they are completely in the wrong.  You have to look at more than appearances.  L'shem shamayim is something that comes from deep within, not something found on the surface.  (see more here)

Coming back to our parsha, yes, Moshe was given a mitzvah of  נְקֹ֗ם נִקְמַת֙ בְּנֵ֣י יִשְׂרָאֵ֔ל מֵאֵ֖ת הַמִּדְיָנִ֑ים, to avenge Bn"Y, but just like in these other cases where the use of violence necessitated 100% being motivated l'shem shamayim with no other agenda, here too, the mitzvah entailed being motivated 100% to avenge what was done to Bn"Y.  It can't be 95 or 98 or 99% nekama -- it's 100% all in or it's stam violance and not a kiyum mitzvah.  How can you be 100% all in for nekama when you know your own life is forfeit if you do so?  No question Moshe would DO the mitzvah, would act if Hashem wanted him to act.  But the mitzvah here required more than action -- it required Moshe's placing the motivation to avenge Bn"Y, to avenge kvod shamayim, beyond any consideration of his own life.  He had to be all in, 100% on board and motivated.  And that is the test that he passed.

Coming back to the mitzvah of kashering kelim and hirhurei aviera, that is why those ideas were so important davka now, davka in this battle against Midyan.  When Moshe presented the mitzvah to Bn"Y, he reformulated it as "la'teit nikmat Hashem b'Midyan."  Moshe had to put even consideration for his own life on the backburner in order to have the proper motivation to fulfill that mitzvah.  Imagine what was going through his mind as he saw those soldiers coming back with the spoils of war.  Is this how soldiers motivated by "nikmat Hashem" alone, with no regard for their own agenda, return from battle?  Does a soldier motivated purely by "nikmat Hashem" stop to collect treasure along the way?  אם מידי עבירה יצאנו, מידי הרהור לא יצאנו.   

where even treif is kosher

1) I've been swamped with work, but wanted to get in something on the parsha and share a beautiful thought of Rav Kook.  Ramban on our parsha explains why the Torah speaks about kashering and toiveling the klei Midyan but did not speak about doing the same for the kelim taken during the war with Sichon and Og:

והזהיר אותם עתה בהגעלת כלי מדין מאיסורי הגוים, ולא אמר להם זה מתחלה בכלי סיחון ועוג שלקחו גם הם שללם, כמו שאמר: רק הבהמה בזזנו לנו ושלל הערים אשר לכדנו (דברים ב׳:ל״ה). והטעם: כי סיחון ועוג מלכי האמורי הם וארצם מנחלת ישראל היא, והותר להם כל שללם אפילו האיסורין, דכתיב: ובתים מלאים כל טוב אשר לא מלאת (דברים ו׳:י״א), ואמרו רבותינו (בבלי חולין י״ז.): קתליג דחזירי אישתרי להו. אבל מדין לא היה משלהם, ולא לקחו את ארצם, רק לנקום נקמתם הרגו אותם ולקחו שללם, ולכך נהג האיסור בכליהם. וכן בדין הטומאה שהזהירם עתה: ואתם חנו מחוץ למחנה שבעת ימים וגו׳ (במדבר ל״א:י״ט), כי במלחמת סיחון ועוג היו כל ישראל, וטומאה הותרה בצבור. ועל דרך הפשט הזהירם: ואתם חנו מחוץ למחנה שבעת ימים ותתחטאו (במדבר ל״א:י״ט) – כדי שלא יטמאו את העם, אבל שם כולם היו שוים בדבר.

Ramban holds that during battle for the territory of Sichon v'Og, which was part of Eretz Yisrael, the rules of kashrus were suspended. This is a special din learned out from Devarim 6:11 that promises וּבָ֨תִּ֜ים מְלֵאִ֣ים כׇּל־טוּב֮ אֲשֶׁ֣ר לֹא־מִלֵּ֒אתָ֒ וּבֹרֹ֤ת חֲצוּבִים֙ אֲשֶׁ֣ר לֹא־חָצַ֔בְתָּ כְּרָמִ֥ים וְזֵיתִ֖ים אֲשֶׁ֣ר לֹא־נָטָ֑עְתָּ וְאָכַלְתָּ֖ וְשָׂבָֽעְתָּ that one is allowed to enjoy the spoils of a war of conquest in Eretz Yisrael, whether kosher or trief.  The battle against Midyan was not a battle of conquest for territory in Eretz Yisrael, and therefore the Torah needs to speak about how to treat the treif kelim. 

I saw Rav Kook quoted as saying the following hesber: We translate "assur" as meaning "prohibited," but that's not exactly right.  Assur means tied up, locked up.  A beis ha'assurim is a prison.  The Baal haTanya explains that when we eat and have strength to learn and daven, there is a release of spiritual as well as physical energy from the food we consume.  In food which is assur, that energy is locked up; it cannot be liberated and released for good, and so the food is off limits.  However, says Rav Kook, when a Jewish soldier puts his life on the line fighting for Eretz Yisrael, then even though under usual circumstances he cannot elevate that bacon or that cheeseburger for avodas Hashem, when he is engaged in kibush ha'aretz he is on such a high level that he is able to do so.  The drive to take Eretz Yisrael gives us strength to accomplish things in ruchniyus that otherwise we would be unable to achieve.

(The Rambam, parenthetically, has a completely different understanding of this din.  He puts it in the same chapter (Melachim 8:1) as his discussion of the laws of yefat toar (see Avi Ezri) and learns that the heter to eat treif is a special dispensation 1) only for soldiers, and it  2) applies both to milchemes reshus and milchemes mitzvah, whether fighting to conquer the 7 nations in Eretz Yisrael or fighting some other war.  

Why then does the Torah mention kashering kelim here?  About 10 years ago we discussed the Rogatchover's chiddush that the fight against Midyan did not have a din milchama, but was an act of nekama.  "Nikom mikmas Bnei Yisrael..."  )

2) The Netziv takes note of an interesting repitition in Moshe's recounting to the tribes of Reuvain,Gad, and Menashe the sin of the mergalim and the previous generation:

Pesukim 10-11:

 וַיִּֽחַר־אַ֥ף ה׳ בַּיּ֣וֹם הַה֑וּא וַיִּשָּׁבַ֖ע לֵאמֹֽר

 אִם־יִרְא֨וּ הָאֲנָשִׁ֜ים הָעֹלִ֣ים מִמִּצְרַ֗יִם מִבֶּ֨ן עֶשְׂרִ֤ים שָׁנָה֙ וָמַ֔עְלָה אֵ֚ת הָאֲדָמָ֔ה אֲשֶׁ֥ר נִשְׁבַּ֛עְתִּי לְאַבְרָהָ֥ם לְיִצְחָ֖ק וּֽלְיַעֲקֹ֑ב כִּ֥י לֹא־מִלְא֖וּ אַחֲרָֽי

Pasuk 13:

וַיִּֽחַר־אַ֤ף ה׳ בְּיִשְׂרָאֵ֔ל וַיְנִעֵם֙ בַּמִּדְבָּ֔ר אַרְבָּעִ֖ים שָׁנָ֑ה עַד־תֹּם֙ כׇּל־הַדּ֔וֹר הָעֹשֶׂ֥ה הָרַ֖ע בְּעֵינֵ֥י ה׳

Why "va'yichar af Hashem..." two times in speaking about the same event?  

The sin of the meraglim was in fact a double-sin.  Eretz Yisrael is not just some random piece of real estate that Hashem designated to be our homeland.  Eretz Yisrael is the makom hashra'as ha'Shechina.  To live in Eretz Yisrael is to live under direct hashgacha, which is a tremendous privilege, but also a tremendous responsibility.  כִּ֥י לֹא־מִלְא֖וּ אַחֲרָֽי means the sin of the meraglim was not just in rejecting Eretz Yisrael -- it was rejecting the Shechina.  "The meraglim didn't want to be there because I am there," said Hashem.  "It's me they can't live with, not just the country that they don't like."

Nachamu nachamu ami...  A double-nechama.  We don't just want to return to the land; we want to be there and live in Hashem's presence, with a hashra'as haShechina. 

nedarim define the real you

Chazal tell us that as a result of the sin of not keeping nedarim a person's children can die.  Ayom v'nora, a tragic punishment!  What is the connection, the midah k'neged midah, between the crime and the outcome?

Sometimes a person feels inspired by a great shiur or a great davening or some other positive experience.  At that moment the person feels the urge to make all kinds of changes.  "Konam my smartphone alay k'cheirem" -- they take a neder not to use a smartphone any more, for example  "Ashkim v'ashaneh perek zeh" (Nedarim 7) -- they take a neder to add a seder of learning., for example.  How long does the commitment last?  Let's be real.  Does it last a day or two, or a week or two?  By that point the inspiration is gone and life returns to normal until the next upswing, at which point the process repeats itself.

So who is the real you?  Is it the person who is inspired and wants to do better, if only the mundane morass of day-to-day life did not suck you down?  Or is the real you the person who lives in the hum-drum of daily existence and those moments of inspiration are the exception to the rule?

The nafkah minah is what you give over to your children.  Do you give over inspiration and idealism, even though you may not be able to maintain those height?  Or do you give over the daily struggle in the jungle of corporate life, where idealism is just escapism from the work needed to make more money or earn a better position?

Explains Rav Kook, if nedarim -- if those commitments you make when inspired or in need or seeking something greater -- are not real, i.e. if your idealism is just an escape but is not part of your essence, then you cannot properly raise the children Hashem has given you.   You sadly view the world backwards, and therefore Hashem c"v will take back the gift he has entrusted you with. 

simcha from having a thorn in our side

Last week's parsha warns us that if we don't drive the Canaanim out of Eretz Yisrael, "V'haya asher tosiru meihem l'sichim b'eineichem u'l'tzeninim b'tzideichem," they will be like splinters in our eyes and thorns in our side. 

Chazal tell us as a general rule that when a sentence or parsha starts with the word "v'haya" it portends good tidings -- "ain v'haya elah lashon simcha."  What's the simcha in our pasuk?  What kind of simcha is it to be poked in your eye or side?

R' Tzadok haKohen (Pri Tzadik, Matos #5) quotes the Pesikta on the haftarah which explains that when Bnei Yisrael entered Eretz Yisrael, they left alive Rachav, who in turn (through her family) produced seven prophets, among them Yirmiyahu haNavi.  It is the words of Yirmiyahu haNavi that are the thorn in our side!  It is his tochacha and mussar that are painful for us to hear.  Bnei Yisrael were so upset by Yirmiyahu's words that they threw him into a pit to get rid of him.

At the same time, "v'haya," there is great simcha in shamayim from those words, because it is through those words of tochacha that we will eventually get out of galus.  Had they penetrated back when they were delivered, maybe there would not have been a galus, but even if we didn't listen then, we've had 2000 years to hear them again and again, and eventually they will sink in.

parshas nedarim -- closure on Moshe's life

Why is the parsha of nedarim placed at the end of Sefer BaMidbar? Ramban explains that the previous parsha, which deals with the korbanos musafim of the yamim tovim, ends with a mention of nidrei gavoha, the korbanos that a person voluntarily pledges to bring (29:39). The Torah now tells us that there are additional nedarim, nidrei hedyot, that don’t pertain to korbanos and which have their own laws.

Abarbanel suggests that these last few parshiyos in BaMidbar all involve things Moshe had to do before leaving this world. Moshe was the chief justice, and in that capacity was the go-to man when people needed a neder absolved. He now had to teach the roshei ha’matos, the leaders, the halachos of nedarim to empower them to fill that role.

I would like to follow in the Abarbanels footsteps – the parsha relates to Moshe's impending exiting of the scene – but in a different way than he suggests.

In the very next parsha Moshe is given the command to take revenge on the Midyanim, “V’achar tei’asef el amecha,” after which he will die.  Why did G-d include this detail?  Was it a challenge to see if Moshe would fulfill the mitzvah even knowing that doing so would bring about his own end?  Ksav Sofer answers that this was not the case.  It was not a test, but rather an opportunity. Hashem wanted to give Moshe a chance to redeem his past sin at Mei Merivah, and in doing so, be able to die in peace. Moshe's error at Mei Merivah was in not showing empathy to Klal Yisrael. He responded to the people’s request for water with anger instead of compassion. Here, Hashem commanded, “N’kom nikmas Bnei Yisrael,” avenge the Jewish people. Show that you feel their pain at being dishonored, and in this way, undo the damage done earlier.  This way you can leave the world with a clean slate.

Perhaps the parsha of nedarim is also a rectification of the Mei Merivah episode and a means of bringing closure to Moshe's past. By hitting the rock instead of speaking to it Moshe failed to teach the people the power words can have. Teaching the parsha of nedarim gave Moshe the opportunity to convey that lesson.  “Lo yacheil devaro” – words cannot be treated lightly. 

Later in the parsha, when the Bnei Gad and Reuvain promise that they will make pens for their sheep and cattle and build homes for their children, Moshe accepts their word, but is reiterating the promise, he  reverses the order --- first, a home for the children, then a place for the sheep. Moshe concludes, “v’ha’yotzei mi’pichem ya’asu.” R’ Shaul Yisraeli writes that this is not just a warning to the Bnei Reuvain and Gad to keep their word – it’s an explanation of why the seemingly trivial detail of the order of their words mattered. What difference does it make if the Bnei Gad and Reuvain first spoke about the sheep and then their children or the other way around?  Either way, they would have to take care of both?  The answer is that how a person speaks influences what they do and who they are.  How you put it is important because, "v’ha’yotzei mi’pichem ya’asu," a person does, acts, becomes, what comes out of their mouth.

ki na'ar anochi -- is there an age requirement to becoming a navi?

In the haftarah to Parshas Pinchas, Yirmiyahu says to Hashem that he is unfit to be a prophet because he is a “na’ar.” Most of the translations I’ve seen render this as “a lad” or “young boy“ or something similar. There are two problems with this translation:

Binyamin is called a na’ar by his brothers, but when he appeared before Yosef he was already married and had 10 children. Yosef is called a na’ar (“v’hu na’ar es bnei Bilha v’es bnei Zilpah…”) even though at that time he was a teenager. Yehoshua (“u’meshorso Yehoshua bin Nun na’ar lo yamish m’toch ha’ohel”) must have been a middle aged man and he is still called a na’ar.

Even granting the possibility that na’ar here means young man, why should Yirmiyahu’s age have been a barrier to nevuah? Radak points out that Shmuel was able to receive nevuah when he was very young -- why not Yirmiyahu?

Radak explains that the word na’ar means an apprentice or someone in training. Yehoshua was Moshe’s apprentice; Yosef may have been serving his older brothers, bnei Bilha and Zilpah. Yirmiyahu’s argument was not simply that he was too young to be a navi. What he was saying is that he was still merely an apprentice navi – there was someone above him, greater than him, who G-d should have chosen. This echoes Moshe’s argument that since Aharon was an experienced, established navi, there is no reason to select him to deliver G-d’s message.

I wanted to just add that this may not just be a practical argument, but it may be a halachic argument. The gemara (Meg 14b) asks how Chuldah could prophesize while Yirmiyahu, who was a greater navi, was around. (I’m not 100% sure I understand the gemara’s question – if G-d starts speaking to you, how can you not prophesize, regardless of how much greater others may be? I assume what the gemara means is that receiving nevuah requires some kind of prior preparation. If there is someone greater already acting as a navi, that bars others from making those necessary preparationsto receive nevuah themselves.) The gemara answers that since she was a relative of Yirmiyahu’s, he was mochel. It sounds like there is a din similar to that of moreh halacha b’makom rabo with respect to nevuah. Maybe this is what was bothering Yirmiyahu – as a talmid, or apprecntice navi, he was in a similar position as Chulda and al pi din had to defer to the greater navi.

tnai kaful and a few other points

1) On Friday I mentioned that when the Bnei Reuvain and Gad consented to the terms Moshe presented for their receiving Eiver haYarden, they first referred to those terms as the words of “adoni Moshe” and then, after Moshe presented the agreement in public with all the formality of a tnai kaful, they referred to the terms as “es asher dibeir Hashem.” Ramban explains that the Bnei Reuvain and Gad wanted to emphasize that they saw Moshe’s words as coming from G-d, and therefore they would respect the terms of agreement even without a formal tnai kaful.

The Ohr Sameiach and Rogatchover add a halachic dimension to the point.  They quote the view of the Shi’ilitos who says that tnai kaful is only necessary when there is an agreement directly between party A and party B.  However, where one of the parties is acting through a shliach, even without tnai kaful, any condition that is not met voids the shlichus and m’meila voids the agreement.  At first the Bnei Reuvain and Gad thought that Moshe was acting as G-d’s agent, so to speak, and they therefore addressed Moshe as an independent actor, as “adoni Moshe.”  However, when Moshe made a tnai kaful, they realized that Moshe was not simply an agent, because agreement with an agent doesn't require tnai kaful.  It was as if Shechina m’daberes m’toch grono, G-d was speaking through Moshe, and their agreement was being made directly with G-d.  Therefore, they rephrased their consent to “es asher dibeir Hashem.”

Technical details aside, Ralbag sees a moral lesson in the fact that Moshe framed the agreement in the formal terms of tnai kaful and did not just seal the deal with a handshake.  Unless terms and conditions are spelled out up front, parties can wind up disagreeing later as to what was meant; each side may think the other is in the wrong – even if that other side being questioned is Moshe Rabeinu.  Sure, we would give him the benefit if the doubt, but the greatness of Moshe is that he leaves no doubt.

2) Rashi writes that sheivet Levi participated in the war against Midyan.  The GR”A, however, had a different girsa in the Sifri and opines that Levi did not participate.  You could try to reconcile the two positions by saying they did not participate directly in battle but still contributed to the war effort.  We once discussed the Rogatchover’s sevara that the battle against Midyan was an act of nekamah and did not fall into the formal halachic category of milachama, with all is various rules.  This may be the point of the machlokes.  Sheivet Levi did not participate in milchama (Rambam, end of Hil Shemita), but this may not have been a milchama.

3) The Tosefta writes that the “klei kodesh” taken out to battle was either the aron or the bigdei kehunah.  The Netziv back in Parshas Beha’aloshecha (10:9) in the parsha of chatzotzros writes that the pasuk there of “v’nizkarten lifnei Hashem Elokeichem” teaches that the chatzotzros may only be blown in the presence of the aron or the tzitz (which had the shem Hashem on it).  This perhaps explains the view of the Ba’al haMaor who writes that blowing chatzotzros on a ta’anis, as opposed to on Rosh haShana, is only a din derabbanan.  What about the pasuk in chumash that says there is a mitzvah to blow at a time of tzarah?  It could be that the Ba’al haMaor is talking about blowing outside the mikdash, outside the presence of the aron.  The mitzvah d’oraysa, as the Netziv explains, is only in the mikdash when the aron is present.  (R' Soloveitchik quoted here suggested that the Ba'al haMaor of course holds that tekiyas chatzotzros is d'oraysa; what he meant is that you cannot say mitzvos lav lehenos nitnu on the mitzvah of chatzotzros because it is a chovas hatzibur, not a chiyuv on each individual to blow).

4) If anyone does not know about the Shmira Project, please check out their website http://shmiraproject.com/   It's wonderful to say tehillim or learn or do mitzvos in the zechus of our soldiers in general, but the shmira project goes a step further and will pair you with a specific person in whose zechus you can learn, daven, do mitzvos. 

Moshe's terms or G-d's?

Ramban observes that when the Bnei Reuvain and Gad first consented to the terms presented by Moshe that in exchange for their taking lands in Eiver haYarden they lead the nation in the battle to conquer Eretz Yisrael, they used the expression, “avadecha ya’asu ka’asher adoni mi’tzaveh.” (32:25).  However, when Moshe then presented their agreement before Yehoshua and the leaders of the other tribes, the Bnei Reuvain and Gad responded with a slightly different expression: “asher y’daber Hashem el avadecha kein na’aseh.” (32:31).  Why the change in phraseology?

I think this answer of the Ramban is one of the biggest yesodos in the parsha:

 אמרו לו, אין אדוננו צריך לצוות עלינו בתנאי כפול, חלילה לעבדיך מעבור על מה שאדוני מצווה כי הם דברי ה' ולא נעבור על מצוותו. וזה טעם "את אשר דבר ה'", כי מתחלה אמרו (פסוק כה): כאשר אדוני מצווה:

In other words, the tribes of Reuvain and Gad first response, “ka’asher adoni mi’tzaveh,” implied that the terms to which they were agreeing were Moshe’s own.  How do you make an agreement between two parties enforceable and binding?  You go to a lawyer and draw up a contract.  Moshe proceeded to create a formal tnai kaful, putting their agreement in “legaleze” so it would carry all the force and authority of a binding contractual agreement.

Reuvain and Gad then rephrased their original consent.  “No need for all the formalities, no need for the ‘legaleze’ to get us to keep our word.”  They recognized that the terms were not Moshe’s own, but were “asher y’dabeir Hashem,” what G-d had dictated, and therefore they could not and would not back out of the deal.

The chassidishe seforim see the stylistic differences between Sefer Devarim and the other books of the Torah as a function of that sefer being a bridge between torah she’b’skav and torah sheb’al peh.  That bridge actually begins in our parsha of Matos.  Noticeably missing from the opening of our parsha is the usual declaration of, “Vayidaber Hashem el Moshe leimor...,” that we read so many times in chumash, yet, Moshe nonetheless says to the roshei hamatos, “Zeh hadavar asher tzivah Hashem…” (30:2)   This is the idea the Ramban is teaching us.  The Bnei Reuvain and Gad recognzied that the voice of Moshe, the voice of Chazal, is the ratzon Hashem. 

muflah ha'samuch l'ish, or when is a katan not a katan?

There is a chiddush in the parsha of nedarim that the vows of a child a year under bar mitzvah, a muflah hasamuch l’ish, have validity.  There are two possible ways of understanding this din: 1) does the Torah mean that even though the child is still a minor, when it comes to hil nedarim his/her vows are taken seriously, or, 2) is the Torah redefining the age of majority viz a viz hilchos nedarim?

The gemara (Nidah 46) quotes Rav Huna that if a muflah hasamuch l’ish makes a neder and then violates that neder, he/she would get malkos.  If the chiddush haTorah of muflah hasmauch l’ish was just that even a neder of a katan has validity, then Rav Huna’s din wouldn't make sense – a katan is exempt from punishment.  It must be that the Torah treats a muflah as a gadol.  The same can be seen from the Rambam’s formulation (Nedarim 11:4):

 הואיל והגיעו לשני הגדולים, נדריהן קיימין--אף על פי שלא הביאו סימנין, ועדיין לא נעשו גדולים לכל דבר; ודבר זה מדברי תורה--שהמופלא הסמוך לאיש, הקדשו הקדש ונדריו נדרים.

The words “higi'u l'shanei hagedolim" imply that a muflah is considered (viz a viz nedarim) a full fledged gadol.

We discussed a similar issue once before.  R’ Chaim (al haRambam) asks how the gemara can have a hava amina that the age at which child can become a ben sorer u’moreh is under 13 – a minor cannot serve as a defendant or plaintiff in beis din!  R’ Chaim therefore concludes that the gavra of the ben sorer u’moreh is technically never found guilty of any crime.  Beis din simply finds as a matter of fact that he has the status of a ben sorer, and because of that status he is given a punishment for the inevitable future crimes he will commit (ne’herag al shem sofo).  R’ Shach in Avi Ezri sees this as a distinction without a difference.  How can a person be punished without being guilty of some crime?  Rather, explains Rav Shach, even though normally a minor cannot come before beis din or receive punishment, the chiddush of the parsha of ben sorer u’moreh is that viz a viz this particular parsha we treat the individual as a gadol from an earlier age. 

My son showed me that the Shitah Mekubetzes in Archin 3a asks why a pasuk is needed to exclude a katan from punishment for the issur of being metamei mikdash – a katan is never liable for punishment?  The Shitah gives two answers: 1) since a katan is included in the parsha of tumah, i.e. he can become tamei, I might have thought the issurim and punishments extend to him as well, kah mashma lan; 2) the exclusion is needed for someone who becomes tamei as a katan and then becomes a gadol and enters the Mikdash.  Could the two answers of the Shitah hinge on this chakirah?  The first answer seems to accept at least in theory that a katan could be liable for punishment, which would imply that viz a viz the parsha of tumah he is treated as a gadol.  The second answer perhaps holds that a katan remains a katan, irrespective of whether certain dinim apply to him at an earlier age.

I thought maybe the din of tumas mikdash is different.  It’s not an issur gavra of entering the mikdash while tamei, but rather a din in the cheftza shel mikdash not being a place where tumah is brought.  It doesn’t matter whether the vehicle for the tumah coming in is through a gadol or a katan.  By way of analogy, the S.A. paskens that a katan can light ner Chanukah for the family even though normally a katan cannot be motzi a gadol in mitzvos.  There too, the idea may be that the mitvah of ner Chanukah is the cheftza shel menorah being lit (as R’ Chaim al haRambam explains by neiros mikdash), irrespective of who is doing the lighting.  Essentially I am trying to have my cake and eat it too – like R’ Chaim explains by ben sorer u’moreh, I am essentially opening the door to giving out a punishment absent any chovas hagavra, simply by virtue of a certain situation being created.  Now that I’ve written this out, I’m less convinced that this makes sense, but I’ll throw it out there anyway for your thoughts.

targum even for Ataros and Divon

A few years ago we discussed the gemara (Brachos 8) that a person has to finish shenayim mikra v’echad targum with the tzibur, even the pasuk of Ataros v’Divon (32:3) mentioned in our parsha.  Why does the gemara single out this pasuk?  Rashi explains that these are just place names; the targum adds no interpretation.  The gemara therefore streeses that these pesukim must be read as well; one must read the mikra three times since there is no targum.

Tosfos asks: if Rashi is right, the gemara could have chosen any pasuk that simply lists names.  Why these in particular?  Tosfos therefore suggests that the pasuk of Ataros v’Divon was chosed because there is a Targum Yerushalmi on the pasuk.  Even though this targum is not the “standard” targum of Onkelus, it is still better than just reading the mikra three times.

I saw this year that Rabeinu Bachyei offers a different answer.  Rashi 32:38 writes with respect to the cities of Nevo and Ba’al Me’on that these names were associated with idolatry.  When the cities were conquered by Reuvain, they changed the names to something else. Rabeinu Bachyei extends this idea to the names of all nine cities mentioned, including Ataros and Divon.  One might have thought that since reading the targum here involves reciting names of avodah zarah it should be omitted; therefore, the gemara stresses that even here there is a chiyuv to read shenayim mikra v’echad targum.

gilu b're'ada

The gemara learns from “isha hafeiram v’Hashem yislach lah” that even though a woman’s husband was matir her neder before she violated it, so in truth she did nothing wrong because the neder she violated no longer exists, she still needs slicha and kaparah.  R’ Akiva moralized: if kapprah is needed even for someone who intended to do an issur but in fact did nothing wrong, think of how serious the consequences are for someone who intended to do wrong and carries out the deed!

The Mishna tells us that the two happiest days of the year were Yom Kippur and 15 Av.  Let’s put aside 15 Av for now and focus on Yom Kippur.  Why was it one of the happiest days?  The gemara explains because it is the day of slicha and kapprah.  Slicha and kapparah is a reason to rejoice; we should be dancing on Yom Kippur like on Simchas Torah!  Contrast that with R’ Akiva’s reaction to our pasuk of “v’Hashem yislach lah.”  You would think that this woman who narrowly escaped doing an aveira and is promised slicha v’kaprah should be rejoicing, yet R’ Akiva tosses cold water all over the celebration and tells us that she should be quaking in her boots, kal v’chomer someone who really sins.

Perhaps there is no contradiction here, but two sides of the same coin.  The celebration of slicha and kapprah stems davka from the appreciation of just how precarious the situation one who needs slicha is in.

speech! speech!

The leaders of sheivet Menashe were concerned lest Bnos Tzelafchad marry men from other shevatim and their property pass through inheritance by their husbands or children to other tribes.  The Torah's solution (al pi peshuto shel mikra -- see below) was that Bnos Tzelafchad must marry only within their own sheivet.   The Torah prefaces this ruling by saying, "Latov b'eineihen t'hiyena l'nashim," that the Bnos Tzelafchad may marry whomever they desire -- and then adds the stipulation so long as whomever they desire is from their own sheivet. Wouldn't it have been more to the point to just tell the Bnos Tzefchad who they **can't** marry -- which is the whole point here -- without these introductory words?

According to one opinion in Chazal (B"B 120), the prohibition against marrying members of other shevatim applied to everyone **except** the Bnos Tzelafchad. The order of the pasuk according to this view makes perfect sense. The Torah first sets out the law: Bnos Tzelafchad were legally entitled to marry whomever they desired. The Torah then follows up with a bit of advice: Even the Bnos Tzelafchad should stick to their own sheivet. (The Netziv writes that the reasoning behind this advice is not just a matter of keeping property within the sheivet, but is a far broader directive -- don't flaunt being different. Just because you can take advantage of a special privilege that sets you apart doesn't mean doing so is a good idea.)

The Ksav Sofer offers a different answer (in keeping with the pshuto shel mikra that Bnos Tzelafchad could not marry outsiders) based on a a chiddush he quotes from the Panim Yafos. Although both husbands and children could inherit, the real issue sheivet Menashe had was specifically with husbands inheriting.  Although children of the Bnos Tzelafchad would count as members of their father's sheivet, the Panim Yafos writes that ultimately, since children have only a kinyan peiros(see Gittin 48a-b), the property of the children remained owned by their tribe of Menashe. Given this premis, Bnos Tzelafchad had a way to avoid the problem raised by the leaders of their sheivet. All they had to do was find husbands who would forgo their right to inherit, i.e. husbands who would agree to marry with a tnai that they are mochel on any potential yerusha.

What kind of husband, says the Ksav Sofer, would agree to such a deal? Obviously, one who is desperate to get married, even at the cost of sacrificing any chance to reap potential inheritance. (I guess the Ksav Sofer did not go for Hollywood-like romantic notions of a group of prince charmings gladly sacrificing their right of yerusha for the sake of their beloved Bnos Tzelafchad.  All I can say is that the value of land meant much more back then...). If this was the only way out for the Bnos Tzelafchad, they would be forced to shoot very low in their shidduch expecations! Therefore, the Torah here prefaces it's solution, namely that Bnos Tzelafchad marry only within their sheivet and therefore not have to force their husbands to forgo the right to inherit, with the positive message that the Bnos Tzefchad would now be free to marry whomever they desire, even from the cream of the crop of Menashe.

Before seeing the Ksav Sofer I understood the pasuk almost the reverse of the way he did. Rather than take it as good news, I understood the message that Bnos Tzefchad may only marry other members of their same sheivet to be pretty bad news. Their shidduch pool just shrank to 1/12 of what it was beforehand! (Imagine the shidduch crisis editorials of that time.) Rather than overwhelm the Bnos Tzefchad with this announcement, the Torah first puts a positive spin on things -- don't worry, you still can marry whomever you desire. Only after first stressing the silver lining does the Torah reveal that they"whomever you desire" has a caveat thrown in: provided the person is a member of your own sheivet.

The mussar haskel of either reading of the pasuk is to be sensitive about how bad news is delivered. Don't just deliver the facts without also addressing the emotional content (speaking personally I know this is easy to write but hard to practice.)  The Torah goes out of its way to stress the positive side of the solution being offered to Bnos Tzelafchad not just as a matter of spin, but out of sincere concern that they realize the good that can come out of the situation.

The Ksav Sofer earlier in Matos demonstrates again how by placing a secondary detail first the Torah subtly communicates an important message. Moshe tells the Bnei Reuvain and Gad, "Bnu lachem arim l'tapchem... v'hayotzei m'pichem ta'asu." (32:24) The building of cities in Eiver haYarden was not a point under debate -- the only issue was whether Bnei Reuvain and Gad would keep their and assist the rest of Bnei Yisrael to fight. Why did Moshe even bother to mention cities and homes for the children who would remain behind?

Recall that when Reuvain and Gad spoke to Moshe they first emphasized their desire for pasture land and only secondarily mentioned their children and families. In speaking to them Moshe reversed the order. Rashi explains that Moshe wanted to set their priorities straight: First comes children, and everything else is secondary.

The promises of a person with misplaced priorities -- someone who puts his $ even before his own children -- are not worth much. If one's own children take a backseat to money, surely a promise would take a backseat as well. Therefore, Moshe tells Bnei Reuvain and Gad to build cities and homes for their children. First get straight what is important in life. Once you have that down, "Hayotzei m'pichem ta'asu," you can be trusted to fulfill your promise, because you will then realize that ethics and responsibility, like children, are far more important than dollars and cents.

So in this post we've spoken a lot about speech -- how Moshe spoke to the Bnos Tzelafchad, how Moshe spoke to the Bnei Reuvain and Gad.  I think this is the theme of the closing of BaMidbar.  I haven't had a chance to fully formulate my thoughts on this yet, so I'm just going to throw our my jumbled stream of consciousness since I'm out of time.  Hope something here makes sense.  Sefer Devarim is Misheh Torah, it's the review session, so in a certain sense Matos-Masei is the conclusion of the Torah as a whole.  We started this four book journey with the creation of man, a "ruach m'malela," a speaking creature, as the Targum translates, and we end by coming back to the theme of speech, particularly as highlighted in the subject of nedarim.  The chassidishe seforim explain:  "Lo yachel devaro," do not make one's speech chulin, mundane and profane; "K'chol ha'yotzei m'piv ya'aseh," and if so, G-d will carry out what you ask and speak of before Him. 

"Vayavei Yosef es dibasam ra'ah el avihem," Yosef's evil speech about his brothers brought us through Braishis into the galus of Sefer Shmos.  The Bnos Tzelofchad describe their father as "meis bamidbar," which the midrash explains as a reference to dibur, speech -- he may have been one of the misonenim or mislonenim (see Ksav v'Kabbalah).  And to some degree it was speech, the words of the Mergalim, that did in the entire dor hamidbar, the generation of (corrupt) speech.  Now we have his descendents, the generation who was redeemed and now stands to inherit Eretz Yisrael, being described as, "Kein Bnos Tzelofchad dovros...," Kein mateh Bnei Yosef dovrim..." (36:5 - see Tiferes Shlomo).  The speech of Yosef that led Klal Yisrael into galus is now validated by Moshe and G-d.

the mitzvah of not surrounding the enemy

1. The Sifri darshens that when Bnei Yisrael waged war on Midyan they were told to not surround the Midyanim, but to leave one side open for escape. A surrounded enemy is a hopeless enemy and a far more dangerous enemy – the Torah doesn’t want us to wage war this way. Ramban counts the command to fight in this way, “Vayitzbe’u al Midyan,” as separate mitzvas aseh; Rambam does not. Meshech Chochma explains that the Rambam held that this din is just a detail that falls under the broader mitzvah category of waging milchemes mitzvah.

Yesterday we discussed the chiddush of the Rogatchover that the battle against Midyan was not technically a milchama, but rather was an act of nekama. Perhaps the machlokes Rambam/Ramban hinges on that chakira. Rambam's view (as understood by the Meshech Chocma) makes sense if one assumes the battle with Midyan was a war like any other war, and therefore falls under the umbrella of milchemes mitzvah. Ramban may have disagreed because he understood the fight with Midyan as nekama, a distinct and separate category from normal warfare.

(It is still a bit difficult according to Ramban why the mitzvah given in the context of nekama should apply to other war situations as well. It seems Ramban understood that the mitzvah relates to the act of fighting, irrespective of whether that act takes place in the context of nekama or milchama.)

2. Rav Shteinman in his sefer on chumash raises the question (link) of whether a bracha was recited over killing the men of Midyan (or over killing Amalek). It sounds from his wording that his safeik was only with regard to the killing of Midyanites in particular, which he compares to misas Beis Din, but not to war in general. Again this reinforces the notion that the parsha of nekama is a unique category.

the battle against Midyan: war or kinetic military nekama?

1. I have to thank Havolim for mentioning a beautiful sevara of the Rogatchover that I otherwise might have missed. The Rogatchover notes that the Torah characterizes the fight against Midyan as an act of nekama, not a war. Placing this battle in its own halachic category explains a number of its unique characteristics:

a) On Shabbos I saw the Taz quotes a Tzeror haMor who holds there was no heter to take a yefat to'ar during this war. Tos' (Shabbos 65, also quoted in the Da'as Zekeinim al haTorah) asks why the generals were concerned lest the soldiers had sinned with hirhurei avirah -- if actually taking a yefat to'ar in battle was permitted, how could hirhur of the same be prohibited? The Tzeror haMor's approach renders this question moot. Tosfos is forced to answer that the concern was for the women who were exceptions to the rule of yefat to'ar and could not be taken.

The Taz assumes that the Tzeror haMor held there was no heter of yefat to'ar for wars waged outside Eretz Yisrael and he marshals proof otherwise. However, based on the Rogatchover one could suggest a different justification for the Tzeror haMor’s view: the battle against Midyan was not a war, but rather was an act of nekama.

(Parenthetically, from a mussar perspective it makes perfect sense that there be no heter of yefat to'ar here. The troubles with Midyan started because of the enticement of znus -- would it make sense to allow the same situation to develop? On the other hand, chassidishe seforim argue just the opposite -- the reason the soldiers at first let the women live was to prove their ability to overcome the yetzer ha'ra that had previously possessed them and do teshuvah gemurah.)

b) Ramban asks why the Torah teaches the halachos of kashering and toiveling only after the war with Midyan and not earlier, after the wars against Sichon v'Og. He answers by quoting the gemara in Chulin (17) that katli d'chaziri was permitted during wars of kibush v'chiluk -- chazir was allowed to be eaten during the wars of conquest of Eretz Yisrael. The wars against Sichon v'Og were wars of conquest, for the purpose of obtaining territory; the war against Midyan was not. Based on the Rogatchover, one can draw an even sharper distinction -- the war against Midyan wasn't a war at all.

Current events sheds some light on why some people are averse to the use (or overuse) of lomdus like this. Does calling something a "kinetic military action" (Pres. Obama's description of what we are doing in Libya) make it any less of a war than it otherwise would be? Does calling a battle an act of nekama instead of milchama change reality? Does a rose by any other name.... I love lomdus like this, but I can see why it would drive some people crazy.

2) M'inyan l'inyan -- Why did Reuvain and Gad wait until after the battle with Midyan to request that they be given the land of Sichon v'Og? Why didn't they make this request immediately after the defeat of Sichon and Og? Chasam Sofer answers that the assumption of Reuvain and Gad was that the land of Sichon v'Og was distinct from Eretz Yisrael. It was the halachic contrast between the war with Midyan and the war with Sichon v'Og which taught them otherwise. As Ramban explains, the war with Sichon v'Og was a war of kibbush; the war with Midyan was not. Once it became clear that the land of Sichon v'Og was included in the mitzvah of kibush ha'aretz, Reuvain and Gad reasoned that it is no worse than Eretz Yisrael proper from a nachala perspective.

3) Last week we touched on the question of why the generals did not step forward with their gifts to the Mishkan for the sake of a kapparah on hirhur immedately after the war ended -- why did they wait? Some of the meforshim explain that it was hearing the parsha of kasheing kelim which made them recognize the need for kapparah. A kli can be completely clean from ma'achalos asurus, yet it still needs to be kashered. It's not just mamashus of issur which is a problem, but it is also that which is absorbed, that which lies unseen below the surface, which is halachically dangerous. The generals realized that even if the army was innocent of any mamashus of aveirah, the thoughts that lurked below the surface might have a ta'am issur that needed kashering.

tefilah and the war with Midyan

1. When Moshe Rabeinu criticizes those who fought against Midyan for leaving alive the women, he poses his criticism as a question to them – “Ha’chiyisem kol nekeivah?” To be fair, I could punctuate that sentence a little differently and end it with a !? or a ?! instead of a plain ?, but the point is that Moshe could have omitted the ? entirely and used just a ! How about something like this – “Hamisu kol nekeivah!”

I had a moment before ma’ariv after the ta’anis and saw a beautiful vort in the Divrei Chaim (the real one). We know that the difference between teshuvah m’yirah and teshuvah m’ahava is the latter turns aveiros into zechuyos while the former does not. Moshe Rabeinu threw in the ? because ain hachi nami, through teshuvah m’ahavah the very same women that were the source of aveirah could have been spared. Rather than be a source of cheit or a reminder of cheit, they would have been a source of zechuyos.

2. On the topic of the war against Midyan, see Havolim who writes about the need to couple military might with tefilah. Contemporary gedolim have encouraged each person to adopt an individual soldier to daven for. I want to share with an insight of the Maor vaShemesh on the same theme.

After the battle and Moshe's collection of a percentage of the spoils both from those who fought and those who stayed behind and shared in the booty, the leaders of Bnei Yisrael came to Moshe and wanted to contribute additional spoils of the war to the Mishkan. Ramban quotes the Midrash that the purpose of this gift was as an act of contrition, to obtain kapparah. Although there were no overt sins committed in the war, the leaders were concerned for hirhurei aveirah, lest the people sinned in thought even if not in deed.

Why did the leaders wait until after Moshe collected the "tax" from the spoils? If indeed they were worried lest they had sinned, should they not have stepped forward immediately after the battle finished?

I don't want to get involved in the nitty-gritty of his explanation (the Maor vaShemesh loves remazim and gematriyos, topics that don't lend themselves well to blog posts/translation), but the general idea of the Maor vaShemesh is that the collection of a portion of the spoils as a "tax" for the kohanim was a hint to the people that they did not deserve to fully enjoy the spoils of war. There was something slightly off in their avodas Hashem during the war, and hence something slight they had to forfeit from the booty. Once the people realized the significance of their having to surrender a portion of their booty, the leaders stepped forward to make amends in a sincere way and offered an additional gift.

But why did those who stayed behind in the camp have to surrender a portion of their booty as a "tax"? They were not exposed to the heat of battle or the women in the camp of Midyan -- surely they were not guilty of any wrongdoing either in deed or even in thought?!

The answer is that those who stayed behind had an important job to fulfill -- it was their responsibility to daven for those who went to fight on the front lines. If those in battle were guilty of wrongdoing, even hirhurei aveirah, it meant that those who stayed behind were guilty as well of not properly fulfilling their mission of davening to protect the troops. An amazing idea -- I can share responsibility for anothers' wrongdoing because I didn't daven hard enough for him!

How another person's tefilos can effect my ruchniyus (what about my bechirah?) is an interesting philosophical question, but sof kol sof that's how things work. The lesson here is that the spiritual ailments of others are our ailments as well, for it is our Torah and our tefilos that are falling short in serving as a shield to protect our community from spiritual harm. You don't need to wait for a war either to daven for another Jew.

kashering after the war with Midyan

Ramban in Parshas Matos asks why the halachos of giyul keilim, how to kasher the utensils obtained from non-Jews, were given only after the war with Midyan and not after the wars with Sichon and Og. Ramban answers that the gemara permits “katlei d’chaziri,” eating fleshpots of pig, during the fourteen year period of fighting for the conquest of Eretz Yisrael. The wars against Sichon and Og were wars of conquest fought for the sake of yishuv ha’aretz, as these lands would be incorporated into Eretz Yisrael; therefore the heter to eat tarfus and use utensils that had absorbed tarfus applied to these battles. The war against Midyan was not a war of conquest for territory, as the Jewish people could not take Midyanite land; it was simply a war against an oppressive enemy. The utensils obtained after this battle required kashering before use.

The Rambam (Melachim 8:1) writes that the heter to eat tarfus has nothing to do with the conquest of the land. It applies to any war, but only when soldiers have no other food to eat and are starving:

חלוצי הצבא--כשייכנסו בגבול הגויים, ויכבשו אותם וישבו מהן--מותר להן לאכול נבילות וטריפות ובשר חזיר וכיוצא בו, אם רעב ולא מצא מה יאכל אלא מאכלות אלו האסורים; וכן שותה יין נסך

Rambam’s view seems difficult to explain in light of a question the gemara in Chulin (17) raises. Before war started, if a Jewish soldier had neveilah, he of course could not eat it. Once war began, he could eat even treif food in the enemy’s camp. The gemara asks what about that piece of neveilah that the soldier had from before the war? Do we say that that once categorized as asur, the status of the meat remains unchanged, or does the start of battle not only lift prohibitions going forward, but even lifts the issur on that piece of meat obtained beforehand?

If, as the Rambam writes, the soldier can eat treif food only under duress to avoid starvation, the whole question makes no sense – of course all prohibitions should be lifted to spare human life. If starvation is at hand, why would there be any issur of eating the treif meat, no matter when it was obtained? The question seems to makes sense if we assume like the Ramban that the heter for tarfus is not based on pikuach nefesh, but rather is a unique dispensation at times of war.

By coincidence, as we shall bl”n see, this gemara sheds light on the question of what to do with your leftover fleishigs now that the nine days are here.

Not immediately after the return from battle, but only after hearing the halachos of kashering utensils, do the soldiers approach Moshe to offer a korban after the battle with Midyan. Why did they wait? The Sefas Emes explains that we learn from the parsha of kashering utensils that not only is the glaringly obvious piece of bacon treif, but even undetectable flavor absorbed in a pot is off-limits as well. The soldiers applied the lesson to themselves -- not only did they have to be concerned for obvious acts of sin, which they had avoided in the war, but they had to concern themselves with the more subtle infleunce of sin that may have penetrated to their neshamos.

bnei reuvain and gad -- mitzvah of kibush ha'retz?

The Ba’al haTurim writes that the words of Moshe to Bnei Reuvain and Gad, “Ya’avor lachem kol chalutz,” hints to the gemara that all who went out to war with David wrote gittin to their wives to free them from the potential problem of yibum or chalitza (chalutz=chalitza) should they be lost in battle. Why is this hint mentioned in the context of addressing Bnei Reuvain and Gad in particular -- shouldn't the takanah of writing gitin to avoid yibum and chalitza apply equally to all soldiers?

R’ Yosef Shaul Nathanson explains that the writing of gitin was only done in milchemes reshus like those fought by David, wars for the sake of expanding the country. When it came to fighting a milchemes mitzvah, the takanah was not needed; Hashem promises that anyone engaged in a mitzvah will not come to harm, and there was no reason to weaken bitachon in that promise by having gitin written.

The majority of the shevatim fighting for the conquest of Eretz Yisrael were engaged in a milchemes mitzvah to conquer their promised territory. Bnei Reuvain and Gad, however, already had their portion of land. For them, the battles in Eretz Yisrael were a milchemes reshus, required only because of their promise to Moshe. Therefore, Moshe commanded to them, he’chaltzu lachem, in particular, not to rely on Hashem’s protection and to make sure they had gitin written.

(Side point: why is there no mitzvah to help conquer the land regardless of whether you take a portion somewhere else? Did geirim not have a mitzvah of kibosh ha’aretz just because they received no portion of land?)