Adar, Binyamin, and v'na'hapoch hu

The Shabbos, Shabbos mevorchim chodesh Adar, is the yahrzeit for my father a"h. The Tur writes in hil rosh chodesh that each one of the 12 months corresponds to a sheiveit of the 12 shevatim. There are various opinions as to which sheivet corresponds with each month, but if you simply follow birth order it works out that Adar corresponds with Binyamin. We read in parshas VaYishlach:

וַיְהִ֞י בְּצֵ֤את נַפְשָׁהּ֙ כִּ֣י מֵ֔תָה וַתִּקְרָ֥א שְׁמ֖וֹ בֶּן־אוֹנִ֑י וְאָבִ֖יו קָֽרָא־ל֥וֹ בִנְיָמִֽין

Ibn Ezra comments: בן אוני – כמו: אבלי. Rachel realized she was dying as she gave birth, and so she named her last child in a way that commemorated aveilus. Yaakov, however, changed the name, or rather, to be more exact, read that name with a different connotation. Tur explains based on Ramban:

פי׳ הוא לפי שאמו קראתו בן אוני וכונה לומר בן אבלי מלשון לחם אונים לא אכלתי באוני ואביו תרגם אותו לטובה מלשון כח כמו ראשית אוני וע״כ קרא אותו בנימין בן הכח כי הימין הוא הכח וההצלה שרצה לקרותו בשם שקראתו אמו כי כן נקראו כלם בשמם שקראתם אמם אלא שתרגם אותו לטובה לגבורה:

The word אוני can refer to aninus, mourning, but can also mean strength, and that's the meaning Yaakov took from his son's name.

When the Tur writes שתרגם אותו לטובה לגבורה perhaps he doesn't just mean that Yaakov reinterpreted the name, but what he means is that Yaakov reinterpreted the meaning of the event. 

Yaakov turned a difficulty, a tragedy, a moment of sorrow, into a source of strength.

This is the essence of Adar. V'nahapoch hu. Challenges shouldn't knock us down; they should lift us up and push us to do better.  They should bring out our inner strength.  The name of the month, Adar, itself means strength, like in the pasuk, "adir ba'marom Hashem."  The great threat of Haman became a moment when Klal Yisrael showed our inner strength and fortitude.

Rashi in Yevamos 122 quotes from the Geonim:

בתשובת הגאונים מצאתי כל הנך ריגלי דאמוראי היינו יום שמת בו אדם גדול קובעים אותו לכבודו ומדי שנה בשנה כשמגיע אותו יום מתקבצים תלמידי חכמים מכל סביביו ובאים על קברו עם שאר העם להושיב ישיבה שם:

A yahrzeit is not a day to wallow in aveilus. It's not about אוֹנִ֑י in the sense of mourning, but rather about ימיני, finding strength. What strength can you draw from the memory of the person who is no longer here? Whether it is להושיב ישיבה, or some other good deed, that should be the goal.

The theme of v'nahapoch hu presents itself in our parsha as well:

וַיַּ֥עַל מֹשֶׁ֖ה וְאַהֲרֹ֑ן נָדָב֙ וַאֲבִיה֔וּא וְשִׁבְעִ֖ים מִזִּקְנֵ֥י יִשְׂרָאֵֽל

וַיִּרְא֕וּ אֵ֖ת אֱלֹקי יִשְׂרָאֵ֑ל וְתַ֣חַת רַגְלָ֗יו כְּמַעֲשֵׂה֙ לִבְנַ֣ת הַסַּפִּ֔יר וּכְעֶ֥צֶם הַשָּׁמַ֖יִם לָטֹֽהַר

וְאֶל־אֲצִילֵי֙ בְּנֵ֣י יִשְׂרָאֵ֔ל לֹ֥א שָׁלַ֖ח יָד֑וֹ וַיֶּֽחֱזוּ֙ אֶת־הָ֣אֱלֹקים וַיֹּאכְל֖וּ וַיִּשְׁתּֽוּ׃

Sounds like a party! וַיֶּֽחֱזוּ֙ אֶת־הָ֣אֱלֹקים וַיֹּאכְל֖וּ וַיִּשְׁתּֽוּ. But someone didn't get an invitation. נָדָב֙ וַאֲבִיה֔וּא are on the list, but not Elazar and Itamar. R' Shteinman writes that had you been on the scene, you would feel bad for Elazar and Itamar. How come every body else gets to enjoy, but not them? But then if you take a look at Rashi, you see that this "party" had tragic consequences:

נסתכלו והציצו, ונתחייבו מיתה. אלא שלא רצה הקב״ה לערבב שמחת התורה, והמתין לנדב ואביהוא עד יום חנכת המשכן, ולזקנים עד: ויהי העם כמתאננים, ותבער בם אש ותאכל בקצה המחנה (במדבר י״א:א׳) – בקצינים שבהם.

What at the time may have felt like a slight, in the end, was a blessing. Being excluded from the "celebration" meant being excluded from the punishment.

In the case of events in chumash, we see how the whole story plays out.  We see how what seems like misfortune actually results in a positive.  We see the vnahapoch hu happen.  In life, we often don't see how the story will end. We sometimes just feel the pain or sorrow, but don't see how in the larger scheme of things it works out for the good. It's the strength of our convictions, adar=adir, that gives us that perspective.

why say "eye for an eye" if the intent is to pay damages? -- parshanut and Brisker lomdus that go hand in hand

While Chazal and parshanim spill much ink justifying the reading of עין תחת עין to mean $, the question that begs asking is why the Torah would use this expression instead of simply saying to pay if that is what the pasuk means.  Seforno explains that there is a moral lesson the Torah is trying to convey:

כך היה ראוי כפי הדין הגמור, שהיא מדה כנגד מדה, ובאה הקבלה שישלם ממון, מפני חסרון השערתנו, פן נסכל ונוסיף על המדה לאשמה בה

One shouldn't think that just like when one's ox gores, the solution is to take out the checkbook and pay for the damages, the same is true when dealing with harm to people -- it's just a matter of the amount of $ involved.   The Torah uses the expression עַ֚יִן תַּ֣חַת עַ֔יִן to make the moral point that there is a qualitative difference between the two.  When you harm another person, the penalty deserved goes beyond $.  Theoretically one should have one's eye knocked out. 

Ibn Ezra approaches the same question as follows:

והנה יהיה פירוש עין תחת עין – ראוי להיותו עינו תחת עינו, אם לא יתן כפרו.

When he writes אם לא יתן כפרו what he is referring to is the pasuk later in Banidbar 35:31 ולא תקחו כפר לנפש רצח אשר הוא רשע למות כי מות יומת.  A **murderer** cannot pay a fine and be released from punishment.  The implication is that in cases other than murder, i.e. bodily harm, it is enough to pay a fine.  We see that even without getting to torah shebaal peh, the Torah itself does its own parshanut on עין תחת עין and defines it as $.  

Both Ibn Ezra and Seforno see עַ֚יִן תַּ֣חַת עַ֔יִן as the theoretically just punishment.  Seforno says on a practical level we cannot carry it out so we read the pasuk otherwise; Ibn Ezra sees the Torah itself as offering the culprit the opportunity of payment as a way out of his crime.  

What is interesting is that we see the echo of these parshanim in the the Rambam (Chovel u'Mazik 1:3):

זה שנאמר בתורה כאשר יתן מום באדם כן ינתן בו אינו לחבול בזה כמו שחבל בחבירו אלא שהוא ראוי לחסרו אבר או לחבול בו כאשר עשה ולפיכך משלם נזקו. והרי הוא אומר ולא תקחו כופר לנפש רוצח לרוצח בלבד הוא שאין בו כופר אבל לחסרון איברים או לחבלות יש בו כופר:

If bottom line the halacha defines עין תחת עין as $, why does the Rambam in his sefer halacha, need to give us parshanut?  Just tell us the din!

R' Yehuda Cooperman connected the dots here.  The Rambam saw in the use of  עין תחת עין in place of $ a fundamental yesod: the הגדרה of the payment for חבלות is different than all other monetary payments.  When your ox gores and causes damage, the purpose of the payment is to make the damaged party whole, to compensate them for loss.  When you harm another person, the theoretical עַ֚יִן תַּ֣חַת עַ֔יִן that should take place would not make the other party whole or provide compensation.  It's all about punishment of the aggressor.  So too, the $ that are in place of עַ֚יִן תַּ֣חַת עַ֔יִן are about punishment, not restitution.  

R' Soloveitchik brought many raayos to this idea, but the basis for it is already found in R' Chaim al HaRambam.  The Rambam writes in To'en v'Nit'an 5:2

 וכן החופר בשדה חבירו בורות שיחין ומערות והפסידוה והרי הוא חייב לשלם בין שטענו שחפר והוא אומר לא חפרתי או שטענו שחפר שתי מערות והוא אומר לא חפרתי אלא אחת או שהיה שם עד אחד שחפר והוא אומר לא חפרתי כלום. הרי זה נשבע היסת על הכל:

There is no שׁבועה of modeh b'miktzas when the claim is for fields because there is a din that אין נשׁבעין על הקרקעות.  

Raavad argues and says that the claim for digging up a field is a monetary claim, not a claim for the property itself.  Why is this case any different than כשאר תביעת ממון וכמי שאמר לו חבלת בי שתים והוא אומר לא חבלתי אלא אחת עכ"ל:?  The Rambam agrees that even though הוקשׁ אדם לקרקעות you can have a  שׁבועה of modeh b'miktzas when dealing with an argument about chovel because the claim is about the $ owed, so why is this case of קרקע any different?

R' Chaim answered that there is a fundamental difference between the claim of relief for damaged land and the claim of relief for chovel.  When it comes to damaged land, the $ is restitution for the land, and therefore the halacha links the payment directly to the קרקע.  When it comes to chovel, the payment is not restitution for the damage caused.  It is punishment for the act of aggression.  Therefore, there is no direct link between the $ and the victim.

Those learning daf yomi are familiar with the limitations on beis din in chutz la'aretz.  Rambam writes (Sanhedrin 5:10)

כל הנישום כעבד אין גובין אותו דייני חוצה לארץ. לפיכך אדם שחבל בחבירו אין גובין הנזק והצער והבשת שהוא חייב בהן דייני חוצה לארץ. אבל שבת ורפוי גובין מפני שיש בהן חסרון כיס. וכן הורו הגאונים ואמרו שמעשים בכל יום לגבות שבת ורפוי בבבל

Is נזק not about חסרון כיס?!  R' Soloveitchik explains that indeed it is not, because the payment is a punishment to the aggressor, not about making the victim whole.

There are many other proofs, but the take away point is that while the expression עין תחת עין at first glance seems to obscure the intent of the halacha, in truth it reveals halacha in a sharper and clearer light.

when was naaseh v'nishna said?

According to Rashi, the events described in ch 24 of our parsha took place before mattan Torah: פרשה זו קודם עשרת הדברות.  The inevitable conclusion one must draw is, as Gur Aryeh writes, ויהיו לפי זה הפרשיות שלא כסדר.  The Torah here hits the rewind button and brings us chronologically back to the middle of parshas Yisro.  As Rashi reads the events of the perek, on 4 Sivan Moshe gave Bn"Y the mitzvos of perisha and hagbala and told them to prepare for mattan Torah, and Bn"Y responded (24:3) כׇּל־הַדְּבָרִ֛ים אֲשֶׁר־דִּבֶּ֥ר ה׳ נַעֲשֶֽׂה׃.  Next day Moshe wrote out the parshiyos of Torah.  On 6 Sivan he read what he had written to Bn"Y, and this time around Bn"Y responded with the famous line that we all know  וַיֹּ֣אמְר֔וּ כֹּ֛ל אֲשֶׁר־דִּבֶּ֥רה׳ נַעֲשֶׂ֥ה וְנִשְׁמָֽע׃ (24:7)   

Ramban on the spot disagrees and writes that these events took place only after mattan Torah.  There are two things to be gained by taking this approach.  1) The order of the text does not deviate from the chronological order of events -- we don't have to rewind to anywhere.  2) The answer to Tos question of why Hashem had to hold Mt Sinai over the people and threaten to crush them if they did not accept the Torah when the people had already declared נַעֲשֶׂ֥ה וְנִשְׁמָֽע is simple -- נַעֲשֶׂ֥ה וְנִשְׁמָֽע was said only after kabbalas haTorah, not beforehand.  

That being said, the glaring issue with Ramban, which he raises himself at the very end of his comment, is that Chazal present נַעֲשֶׂ֥ה וְנִשְׁמָֽע as a great statement of faith on the part of Bn"Y in that the people accepted Torah sight unseen, details unknown.  This has so seeped into our consciousness as part of our mesorah that to disregard it seems almost impossible.  How then do you square the pshat reading advanced by Ramban that  נַעֲשֶׂ֥ה וְנִשְׁמָֽע was said only after mattan Torah with this mesorah?  I don't have a good answer and I don't understand how Ramban squares the issue away.   

Turning back to Rashi's reading, there were two responses by Bn"Y before mattan Torah.  On 4 Sivan the response was only נַעֲשֶֽׂה; two days later the response was נַעֲשֶׂ֥ה וְנִשְׁמָֽע.  Why the change?  Why didn't Bn"Y respond with נַעֲשֶׂ֥ה וְנִשְׁמָֽע the first time around?  What changed?

Shem m'Shmuel answers that there has to first be a kabbalah of plain vanilla נַעֲשֶֽׂה, even without understanding, no questions asked.  Once a person is prepared to accept things on that level, then they are capable of נַעֲשֶׂ֥ה וְנִשְׁמָֽע, of aspiring to understand.  

(Chasam Sofer has a chiddush gadol on the gemara's statement (Shabbos 88):

 רבי אלעזר בשעה שהקדימו ישראל נעשה לנשמע יצתה בת קול ואמרה להן מי גילה לבני רז זה שמלאכי השרת משתמשין בו דכתיב ברכו ה' מלאכיו גבורי כח עושי דברו לשמוע בקול דברו ברישא עושי והדר לשמוע. 

He writes that davka malachim need נַעֲשֶֽׂה to be able to come to נִשְׁמָֽע.  Bn"Y, however, are banim laMakom.  For us, we don't need any preparation or precondition, not like the Sm"S.  The gemara means the opposite of how we usually read it.  It is not complimenting us that we achieved what only angels could achieve.  Aderaba, מי גילה לבני, why are those who are  בני behaving in a way that is appropriate for angels, who are on a lower level!)

Perhaps one can say that on 4 Sivan there was not yet a text of Torah, and therefore, there could be no aspiration for נִשְׁמָֽע.  The thought that a human being can understand G-d or connect with G-d is on its face almost sacrilegious.  How can you dream that your mind can comprehend even one iota of dvar Hashem?  It's only by virture of Torah that we have a means to do so, as the Baal HaTanya explains in ch 4:

וְאַף דְּהַקָּדוֹשׁ־בָּרוּךְ־הוּא נִקְרָא "אֵין סוֹף", וְלִגְדוּלָּתוֹ אֵין חֵקֶר, וְלֵית מַחֲשָׁבָה תְּפִיסָא בֵיהּ כְּלָל,

וְכֵן בִּרְצוֹנוֹ וְחָכְמָתוֹ,

כְּדִכְתִיב: "אֵין חֵקֶר לִתְבוּנָתוֹ",

וּכְתִיב: "הַחֵקֶר אֱלוֹהַּ תִּמְצָא", וּכְתִיב: "כִּי לֹא מַחְשְׁבוֹתַי מַחְשְׁבוֹתֵיכֶם".

הִנֵּה עַל זֶה אָמְרוּ: "בְּמָקוֹם שֶׁאַתָּה מוֹצֵא גְּדוּלָּתוֹ שֶׁל הַקָּדוֹשׁ־בָּרוּךְ־הוּא, שָׁם אַתָּה מוֹצֵא עַנְוְתָנוּתוֹ",

וְצִמְצֵם הַקָּדוֹשׁ־בָּרוּךְ־הוּא רְצוֹנוֹ וְחָכְמָתוֹ בְּתַרְיַ"ג מִצְוֹת הַתּוֹרָה וּבְהִלְכוֹתֵיהֶן,

וּבְצֵרוּפֵי אוֹתִיּוֹת תּוֹרָה־נְבִיאִים־כְּתוּבִים,

וּדְרָשׁוֹתֵיהֶן שֶׁבְּאַגָּדוֹת וּמִדְרְשֵׁי חֲכָמֵינוּ־זִכְרוֹנָם־לִבְרָכָה.

בִּכְדֵי שֶׁכָּל הַנְּשָׁמָה אוֹ רוּחַ וָנֶפֶשׁ שֶׁבְּגוּף הָאָדָם, תּוּכַל לְהַשִּׂיגָן בְּדַעְתָּהּ,

וּלְקַיְּימָן – כָּל מַה שֶּׁאֶפְשָׁר לְקַיֵּים מֵהֶן בְּמַעֲשֶׂה דִּבּוּר וּמַחֲשָׁבָה,

After Moshe had written down a text and there existed a cheftza shel Torah which Hashem's chochma was miraculously connected to, we then had the means to think about נִשְׁמָֽע.

tov acharis davar m'reishiso - Adar and Yosef

On Shabbos I made a siyum on Bechoros in to commemorate my father's yahrzeit, and I tried to tie together the siyum, the parsha, and the fact that it was shabbos mevorchim.  Don't know if I succeeded, but this was my idea:

At the end of the parsha we read (24:5)  וַיִּשְׁלַ֗ח אֶֽת־נַעֲרֵי֙ בְּנֵ֣י יִשְׂרָאֵ֔ל וַיַּֽעֲל֖וּ עֹלֹ֑ת.  Rashi explains את נערי – הבכורות.  Ramban challenges this interpretation: ולא ידעתי למה יכנה הבכורות בלשון נערי, אולי בעבור שהזכיר הזקנים שהם אצילי בני ישראל, קרא הבכורות נערים, כי הם נערים כנגדם.  Why would the Torah refer to the bechorim as ־נַעֲרֵי֙ when the bechor is the eldest of the famly and ־נַעֲרֵי֙ implies someone young?  We could ask a more fundamental question along the same lines: if the Torah meant that the bechorim offered korbanos, then why not use the term bechor?  Why introduce ambiguity by using the term ־נַעֲרֵי֙?

What is it that makes a bechor special?  The Sefas Emes explains (I believe Maharal has this same idea) that a bechor represents hischadshus.  Let me explain with a story.  The first Rosh haShana after my son was born we stayed by my MIL a"h and davened in Yeshiva Far Rockaway.  At some point before tekiyos by wife brought my son to shul in his stroller, where he sat happily sucking his pacifier.  At some point my my son either dropped or tossed his pacifier out of the stroller onto the floor, where it was retrieved by a toddler who was standing there with his mother and some other children.  The little toddler was just about to stick the pacifier back into my son's mouth when his mother, perhaps seeing the aghast look of shock on my wife's face, stopped him and said, "This is a first baby -- first baby's don't take pacifier's from the floor."

When you are still on baby #1, the bechor, the pacifier that falls on the floor gets sterilized.  You have a collection of backups that you can give the kid until you can properly clean the one that dropped.  By the time you are a few babies into building your family, when the pacifier falls on the floor it's enough to rub it on your sleeve, or maybe the 5 second rule applies if you pick it up fast enough (of course I am talking pre-Covid).  When you are dealing with a bechor, everything is new, everything is special, everything is still exciting.

The harm of Amalek is "asher karcha ba'derech."  Amalek cools us off -- our avodah loses its newness, its freshness.  Right after the war against Amalek described at the end of Ki Teitzei, the next parsha is the mitzvah of bikkurim = bechor.  Bring back that excitement to your avodas Hashem  and treat every mitzvah as if it was the first time you were doing it.

That freshness and excitement, "his'naari mei'adar kumi," is what makes the bechor special.  Therefore, the Torah uses the term naar when it calls the bechorim to offer korbanos, since this is the reason they were called to serve Hashem.

The 12 months of the year correspond to the 12 shevatim (Tur Hil Rosh Chodesh).  Chodesh Adar is the month of Yosef.  In a year like ours we have two Adars, and Yosef is the one sheivet that splits into two, Ephraim and Menashe. 

Yosef is the antidote to Eisav/Amalek.  Rashi right at the beginning of VaYeishev tells us היה בית יעקב אש ובית יוסף להבה ובית עשו לקש, ניצוץ יוצא מיוסף שמכלה ושורף את כולם.  The name Eisav, explains Shem m'Shmuel, comes from the same root as a-s-u, made.  Eisav was born with covered with hair -- he looked like a middle aged man right from the womb.  His life was complete from the get-go, with nothing to strive for and nothing left to achieve.  הִנֵּ֛ה אָֽנֹכִ֥י הוֹלֵ֖ךְ לָמ֑וּת וְלָֽמָּה־זֶּ֥ה לִ֖י בְּכֹרָֽה.  Why do I need bechorah -- hischadshus, renewal, rejuvenation -- when I am complete, when I've achieved it all already, and am just going through the motions day after day, waiting to die?  Yosef is the opposite.  He is a "ben zekunim," which the Targum explains to mean "wise," and we know that wisdom usually comes with maturity and age, but at the same time, "v'hu naar," he was and remained a naar, he retained the freshness and excitement of youth.  When Yosef was born, Rachel said, "Yosef Hashem li ben acheir..."  (30:25)  Yosef is never complete -- yosef, Hashem should add more, we should add more and strive for more.  It's no wonder that when Reuvain is displaced as bechor, it is Yosef who takes his place, as Yosef more than any other sheivet has the midah of naarus = hischadshus which defines the essence of what makes bechorah special.  It's no wonder that it is only once Yosef is born that Yaakov takes his leave of Lavan to take on the challenge of meeting Eisav.

When we get to the last month of the year, we might feel that we are out of energy, that we've been through so much these past months that we just want to put it all behind us.  Comes Adar and links us to Yosef, to naarus, to bechorah, to the possibility of renewal at all times, even at the very last moments of the waning year.  "Tov acharis davar m'reishiso" -- the goodness of this last month comes from the reishis, the element of bechorah, naarus, hischadshus, that is latent within it, even though it comes at the end.  Adar and Yosef challenge us to never stop growing.

a promise guaranteed to be fulfilled

This Shabbos is my father's yahrzeit.  Al pi halacha, a yahrzeit is a very serious day and a person should really fast.  Everyone these days seems to be sefardi or chassidic and so they mark a yahrzeit with drink and food.  This idea never really resonated with me either emotionally or intellectually; I don't understand how having a meal or a drink is an appropriate way to commemorate someone's passing or what my eating food and saying a bracha does for the departed in shamayim, but what do I know -- to each his own.  Anyway, poskim quote two reasons to mark a yahrzeit: 1) it is a day of kaparah for the departed, who benefits from our charity and Torah study done l'aliyas ha'neshomo; 2) bad mazal - those who are related to the departed should be a little nervous, as the day has proven inauspicious for them.  There is a potential nafka mina l'dina: let's say a person c"v dies at night, but for their relatives on the other side of the world, it is still the previous day.  Is the date of the yahrzeit fixed based on the date where the meis is, or where the aveilim are?  If the point of the yahrzeit is kaparah for the departed, then it should be fixed relative to the meis.  If it is for the sake of the relatives who are alive, to avoid bad mazal, then the date should be relative to their location.  (Other poskim argue that it is not taluy in the reason, v'ain kan makomo).

It seems to me that when yahrzeit falls on Shabbos, then it is exclusively about kavod ha'meis, to enhance the kaparah and aliyas ha'neshomo.  How can Shabbos, a day where וצווחין אף עקתין בטילין ושביתין, be a day with any danger from bad mazal?  

On to the parsha.

At the end of our parsha (23:20) Hashem tells Moshe that he is going to send a malach to accompany Bnei Yisrael.  Rashi comments that Hashem was telling Moshe that Bnei Yisrael were going to sin and therefore he would have to remove His presence, as we read later in Ki Tisa after the cheit ha'eigel: כִּי֩ לֹ֨א אֶֽעֱלֶ֜ה בְּקִרְבְּךָ֗ כִּ֤י עַם־קְשֵׁה־עֹ֙רֶף֙ אַ֔תָּה

Ramban already asks: although after cheit ha'eigel Hashem threatened to send an angel, Moshe was unwilling to accept that decree and davened for it to be abolished, as we read there  וַיֹּ֖אמֶר אֵלָ֑יו אִם־אֵ֤ין פָּנֶ֙יךָ֙ הֹלְכִ֔ים אַֽל־תַּעֲלֵ֖נוּ מִזֶּֽה.  Hashem responded and accepted his plea, גַּ֣ם אֶת־הַדָּבָ֥ר הַזֶּ֛ה אֲשֶׁ֥ר דִּבַּ֖רְתָּ אֶֽעֱשֶׂ֑ה.  Why then would Hashem tell Moshe now about a decree he would threaten in the future but that would never actually come to pass?  Ramban therefore explains that this malach did not appear during Moshe's lifetime.  The parsha is referring to events after Moshe's death, when Yehoshua was the leader, and at that point a malach guided the nation.  

Whether you learn like Rashi or you learn like Ramban, the question that begs asking is what purpose this advanced warning about a malach served.  Why not just wait for the people to sin, and m'meila they would suffer the consequences of being led by a malach?

The Rambam in his introduction to mishnayos zera'im has a yesod that we've discussed before (e.g. here), which the Meshech Chochma brings up every few parshiyos.  The Rambam writes that when G-d makes a promise, it is contingent on the person receiving the promise being worthy of it.  That's why we find that Yaakov Avinu was worried before his encounter with Eisav despite having Hashem's promise of protection.  Yaakov was worried "shema yigrom ha'cheit" -- perhaps he was unworthy of the promise made to him.  However, writes the Rambam, when the promise is articulated by a navi, not revealed by G-d himself, then it is guaranteed to be fulfilled.  If such a promise were to not come to fruition, then people would be liable to question then authenticity of the navi rather than doubt their own worthiness.  To avoid casting aspersions on the navi, the nevuah is guaranteed to be fulfilled no matter what, take it to the bank.  (See Maharal in Gevuros Hashem ch 7.)

This why, explains Meshech Chochma, Hashem appeared to Moshe to tell him that he is giving his bris of shalom to Pinchas, rather than Hashem appearing in a vision to Pinchas himself.  When Moshe said it, it meant fulfillment was guaranteed, irrespective of Pinchas' future merits or chataim.  

And this is why, says Meshech Chochma, when Avraham laughed when he was told that he would have a son, he did not suffer a rebuke from Hashem, but Sarah was rebuked for her laughter. Avraham heard the promise in a vision from Hashem, and he laughed because he doubted he would be worthy of it being fulfilled.  Sarah, on the other hand, heard the promise from a person -- nevuah -- which meant fulfillment was guaranteed.

The Oznayim laTorah explains our pesukim using the same yesod.  Without this parsha, had Bnei Yisrael only had the havtacha of Eretz Yisrael given by Hashem to the Avos, one might have thought that the cheit ha'eigel proved them unworthy of that promise being fulfilled.  Therefore, Hashem gave our parsha to be spoken by Moshe, the greatest navi, so that it would be guranateed that at least a malach, if not Hashem himself, would lead the people into Eretz Yisrael.  Since it was declared by a navi, irrespective of zechuyos, this promise would be fulfilled.  

The parsha is not meant as a besora of sin, a besora of letdown, but to the contrary, it is a guarantee that Klal Yisrael can and will never be abandoned.  

two elements of geirus

Rashi in parshas Bo quotes a hava amina that a ger should bring a korban pesach right after he converts and not wait until pesach.  A few weeks ago my son explained that we see from Rashi that the korban pesach in Mitzrayim was a kiyum not just of the pesach offering, but also a kiyum of a korban geirus, and therefore one could have a hava amina that every ger bring such a korban at the time of conversion.  Similarly, the milah done before pesach Mitzrayim was also a kiyum in geirus, as the mitzvah of milah itself had already been given to Avraham Avinu.

I was not so enamored with this idea.  The gemara learns the need for a korban for geirus from the korban offered at the time of mattan Torah (end of our parsha).  Tevilah and milah are also learned from mattan Torah.  Why would Klal Yisrael need another geirus at mattan Torah, I asked him, if they already had a geirus in Mitzrayim?

My attempt to answer my own question:

Usually a ger has milah first and then tevilah.  Ramban (Yevamos 47) holds that bdieved it can be done the other way around as well.  Both milah and tevilah are steps in the geirus process, and until both are complete, in whatever order, the geirus in incomplete.

Achronim ask: the gemara (Yevamos 97) writes that if a mother pregnant with twins converts, even though ger she'nisgayer is k'katan she'nolad and all former familiar relationships are null and void, her sons born as Jews are considered related as brothers and there would be an issue of eishes ach for one to marry the other's wife.  Why should this be true according to Ramban?  Even though the twins are yotzei tevilah of geirus in utero, they still need milah to complete their geirus.  8 days after they are born, when they have milah and become geirim, their relationship with each other should be void?

Similarly, the gemara (Bechoros 47) writes that if a pregnant woman converts, the baby is a bechor l'kohen.  According to Ramban, the baby is not even Jewish at birth!   Since milah is necessary for complete geirus, it is only on day 8 that the baby even becomes Jewish, and therefore should not be considered a bechor?

R' Naftali Trop (shiur on ger katan in Kesubos) answers that there are two stages of geirus.  Ramban does not mean that before milah the child is an aku"m.  The child is a member of the Jewish nation, he is related to his Jewish brother, he is a bechor l'kohen if he is the first baby to come out of his mother's womb.  However, the child lacks a kedushas yisrael.  That is missing without the added step of milah.  

How could there be geirus for children at mattan Torah when geirus requires daas and a katan has no daas?  The answer is that the children were already part of Klal Yisrael since they were bnei Avraham, Yitzchak, and Yaakov.  What the geirus of mattan Torah added is the element of kedushas yisrael.  That extension of the geirus, of what it means to be part of Klal Yisrael, does not required additional daas or consent to be accepted.

I suggested to my son that perhaps this is why there was a to stage process of geirus, one in Mitzrayim and one at mattan Torah.  The first, in Mitzrayim, forged us into a nation.  The second, at mattan Torah, forged a kedushas yisrael, which is only possible through Torah.  Without that we might have been a distinct nation, separate from Mitzrayim, but we would have not been a holy nation.

choosing freedom over security

1) My wife writes on her blog that the eved ivri in choosing to stay enslaved was opting for the security of his master's home, where he, his wife, and children were guaranteed a roof over their heads and support, over the risk of going out and making his way in the world.  I would add that an eved ivri is someone who has either opted to sell himself into slavery because he is in desperate straits or someone who is a thief and has no assets to pay back what he has stolen -- in other words, someone who has not seen much success in making his way in the world in the past.  Nonetheless, the parsha teaches us that freedom trumps security.  The slave is wrong to remain in his master's house even if it appears to be the safer option.

2) There are seforim that talk about the lessons that we can learn in our avodas Hashem from the dinim in the parsha, but if you are like me, your knee jerk reaction is to read these as derush, as mystical concepts, as domains totally divorced from halacha.   So let's learn a Ketzos.  In Choshen Mishpat siman 4 the S.A. talks about the concept of "avid inish dina l'nafshei," cases where a plaintiff can take the law into his own hands rather than go through the laborious process of having a din torah and waiting for the court to act.  The S.A. has the following case: Reuvain gave Shimon a pikadon to watch.  Reuvain also happens to owe Shimon some money and has not been forthcoming in paying his debt.  Can Shimon take the law into his own hands and seize Reuvain's pikadon in order to reclaim his debt?

The Ketzos says nothing doing.  His proof comes from a Zohar.  Every night we entrust our soul to Hashem and every morning (hopefully) he returns it.  Modeh ani... she'hechezarta bi nishmasi, Hashem returns our pikadon.  Who among us does not have a pile of debts that they owe Hashem?  Who among us does not have aveiros of all kinds that we need to make restitution for?  Yet Hashem does not hold our neshoma upstairs in order to collect.  He treats the debts as a separate cheshbon, and returns the pikadon, our neshoma, to us.  

This is not some chassidishe sefer -- this is the Ketzos!  Yes, at the end he tacks on a Ritva as well, but that was not his first go-to point.  

Rosh Devarcha Emes = Adar

Chazal tell us that Moshe had difficulty understanding וְנָ֨תְנ֜וּ אִ֣ישׁ כֹּ֧פֶר נַפְשׁ֛וֹ by giving a half shekel.  That's all it takes to redeem a person's nefesh -- a half shekel?!  Hashem answered by showing him a half shekel of fire that he took from under the kisei ha'kavod (whatever that answer means).  

Chasam Sofer (Derashos, Shekalim 5669) asks: the pasuk in our parsha of Mishpatim by the din of a shor muad that kills someone tells us (21:30) אִם־כֹּ֖פֶר יוּשַׁ֣ת עָלָ֑יו וְנָתַן֙ פִּדְיֹ֣ן נַפְשׁ֔וֹ כְּכֹ֥ל אֲשֶׁר־יוּשַׁ֖ת עָלָֽיו׃  Here you have the same idea -- a payment of kofer that is "pidyon nafsho," to redeem the value of a nefesh -- but here Moshe did not have any problem understanding the pasuk.  What's the difference between the two cases?

The idea of machtzis ha'shekel is that you don't know it all and don't have it all; you are incomplete without the input of others, without someone else providing the other half of the coin.  

B'shlama in our parsha, Moshe had no problem understanding how one person could pay a debt of  וְנָתַן֙ פִּדְיֹ֣ן נַפְשׁ֔וֹ . But Moshe Rabeinu was no fool and he understood Klal Yisrael.  וְנָ֨תְנ֜וּ אִ֣ישׁ כֹּ֧פֶר נַפְשׁ֛וֹ not by each person paying for himself, but only b'shutfus, only by coming together, only by each individual realizing that he has just half of the equation.  That Moshe had trouble understanding how to pull off.  How do you get Jews to be united?  How do you get people who are "mefurad," as Haman said, to work together?

The Chasam Sofer explains the symbolism of Hashem showing Moshe the machtzis ha'shekel of fire was an answer to that question, but I don't think we really have an answer yet or understand the answer yet, as we see from what goes on in our communities.  

אדר = ראשׁ דברך אמת.  Adar is the month of truth.  Maharal explains in Nesiv ha'Emes that "chosamo shel HKB"H emes" (Shabbos 55) because Hashem is one and truth is one.  If I put something in a box and ask you to guess what it is, there are an infinite number of wrong guesses you can make, but there is only one possible true answer.  

 מִדְּבַר־שֶׁ֖קֶר תִּרְחָ֑ק (23:7) we have in our parsha.   R' Zusha of Anipoli explained that if you have in you even a smidgin of falsehood, tirchak, it will push you away from Hashem.  "Chosamo shel HKB"H emes," so only someone who is true to themselves, true to Hashem, true to their fellow man, can be close to Hashem.

To acquire the midah of emes you need to start with the midah of anivus.  In order to acquire truth, you have to first have the humility to admit that you don't already have it.  Titein emes l'Yaakov -- the pasuk uses the name Yaakov, not Yisrael, because it signifies the heel, the lowest point.  Emes mei'eretz titzmach because when you plant a seed and it disintegrates into nothing before it can grow.    אדר = ראש דברך אמת is the birthday of Moshe Rabeinu, the anav m'kol ha'adam, and therefore Moshe emes v'toraso emes because Moshe had nothing of his own, he was just a kli kibul for Hashem's truth. 

This why we start Adar by being "mashmi'im al ha'shekalim," announcing the collection of machtzis ha'shekel.  You can't absorb the "chosamo shel HKB"H" of emes which is oneness if you are a splintered people divided into factions.  Machtzis ha'hekel = we need each other (and we need the humility to know that we need each other) in order to complete the picture, to provide the other half of the coin, so that we can function as one people.

the doorpost

 וְהִגִּישׁ֤וֹ אֲדֹנָיו֙ אֶל־הָ֣אֱלֹהִ֔ים וְהִגִּישׁוֹ֙ אֶל־הַדֶּ֔לֶת א֖וֹ אֶל־הַמְּזוּזָ֑ה וְרָצַ֨ע אֲדֹנָ֤יו אֶת־אׇזְנוֹ֙ בַּמַּרְצֵ֔עַ וַעֲבָד֖וֹ לְעֹלָֽם

The Neos Desheh (Ishbitz) explains that the slave who chooses to remain with his master, who cannot separate himself from a live of avdus to olam ha'zeh, from thinking about his work and his wife and his kids and everything else that he is caught up in, should not think that he has no hope for ruchniyus.  His ear is punctured by the doorpost, by the mezuzah, the very place where in Mitzrayim we sprinkled the blood of the korban pesach.  Just like Hashem redeemed us then despite our lack of merits, so too, this Jewish slave who may have no merits, can be pulled out of situation by Hashem.

sipur -- tell me something I don't know

I) Rashi writes that the last chapter of P Mishpatim (Shmos 24) that begins with the words “V’el Moshe amar aleh el Hashem…,” is out of place.  These pesukim are talking about Moshe going up to Har Sinai to get the Torah, and therefore chronologically belong earlier, in P’ Yisro. 

 

Ramban takes issue with this interpretation.  Aside from the difficulty of jumbling the order of the text, Ramban raises two questions in how Rashi reads pasuk 3 of perek, “Vayisaper la’am es kol divrei Hashem v’es kol ha’mishpatim.”  (24:3)

 

1) A question based on sevara: If this perek occurs pre-mattan Torah, then the “mishpatim” must be mitzvos bnei Noach.  Those laws should have already all been known to Klal Yisrael.  Why did Moshe need to repeat them again?

 

2) A question based on language: the word “vayisaper” only is used when relating something new, not old news.  If Moshe is merely reiterating laws that were already known, then the Torah should use a different term here. 

 

I dealt with the first issue back in 2012, but it’s the second point that grabbed my attention this year.

 

Based on this second point in Ramban I better understand the mitzvah of “**sipur** yetzi’as Mitzrayim.”  It’s not enough to sit down Pesach night and talk about what happened once upon a time in Jewish  history.  “Sipur” means talking about yetzias Mitzrayim as if it is something that is fresh and exciting, a new experience.

 

Just a week ago we read “vayishma Yisro kohein Midyan…” –- Yisro knew about yetzi’as Mitzrayim.  Nonetheless, “vayisaper Moshe l’chosno es kol asher asah Hashem…”  Moshe turned what Yisro may have read about in the newspaper into a sipur –- he added a new dimension to the story, a new level of understanding the experience. 

 

II) I don't know who the דרושי וחידושי הרמבא"ד  is, but this is by far one of the most interesting derashos you will ever read on P' Yisro (suitable for sheva berachos, aufrufs, and weddings as well).  Hat tip to my son -- here's the link to his post.

ki tireh chamor sonacha -- lending a helping hand

Two editorial notes: 1) The shtickel torah this week should be l'iluy nishmas my father, whose yahrzeit is this Shabbos.  2) If you have time for nothing else, skip down to the Meshech Chochma at the end because it’s too tremendous to miss.

 

Ki tireh chamor sonacha … azov ta’azov imo (23:5)

 

כִּי-תִרְאֶה חֲמוֹר שׂנַאֲךָ רֹבֵץ תַּחַת מַשָּׂאוֹ וְחָדַלְתָּ מֵעֲזֹב לוֹ עָזֹב תַּעֲזֹב עִמּוֹ:

 

Who is the “sonacha” the pasuk is speaking about?  How can you hate your fellow Jew?  (How do I know, other than the gemara says so, that the pasuk is talking about a Jew?  The Netziv and Malbim in a few places distinguish between an oyeiv and a sonei.  An oyeiv displays animosity openly; a sonei lets it percolate inside.  Had the pasuk been speaking about an aku"m, then it would be an oyeiv -- the animosity would be open -- not a sonei).

 

Answers the gemara (Pesachim 113b): the pasuk is speaking about a ba’al aveira, someone who it is a mitzvah to hate.

 

What exactly does the mitzvah here requires of us?  Does it mean we have to make an exception and put aside the hate and help out, or does it mean to help out in spite of the fact that you are allowed to hate this baal aveira?   

 

It could be that Rashi and the Targum disagree on this point.  Unlike Rashi who learns that “azov” = “ezra,” help unburden the animal, the Targum explains that “azov” here means what we usually think that root means –- to leave/put aside.  The end of the pasuk is not talking about what to do with the animal, but rather what to do with your emotions -– put aside the hatred you may feel towards that sonei and help him out in his time of need (see Ralbag). 

 

This same point may be a machlokes Rambam and Tosfos. 

 

The gemara elsewhere (BM 32) writes that given the choice of unloading the animal of an oheiv or loading the animal of a sonei, it is better to load the sonei’s animal and reap the benefit of overcoming one’s yetzer hara.

 

Tosfos (Pesachim 113) asks: if we are speaking about a baal aveira who one is allowed to hate, then why should one overcome the yetzer to do so? 

 

Before getting to Tosfos’ answer, here’s how the Rambam (end of Hil Rotzeiach)formulates this din:

 

השונא שנאמר בתורה לא מאומות העולם הוא אלא מישראל והיאך יהיה לישראל שונא מישראל והכתוב אומר לא תשנא את אחיך בלבבך. אמרו חכמים כגון שראהו לבדו שעבר עבירה והתרה בו ולא חזר הרי זה מצוה לשונאו עד שיעשה תשובה וישוב מרשעו. ואע"פ שעדיין לא עשה תשובה אם מצאו נבהל במשאו מצוה לטעון ולפרוק עמו ולא יניחנו נוטה למות שמא ישהה בשביל ממונו ויבא לידי סכנה. והתורה הקפידה על נפשות ישראל. בין רשעים בין צדיקים מאחר שהם נלוים אל ה' ומאמינים בעיקר הדת.

 

According to the Rambam, Tos question doesn’t even get off the ground.  There is a mitzvah to hate the baal aveira for his specific misdeed, but in this case, failure to help may lead to the sonei’s death.  You are allowed to hate him, not kill him!

 

(How does that fit the gemara’s words that say this is an issue of being koveish the yetzer?  Shu"T Maharam Shi”k (OC 81) explains that the yetzer we are talking about is that of the baal aveira.  You want to prevent the baal aveira from continuing to succumb to his yetzer and doing sins?  Then show him a helping hand.   Show him you care.  That’s the way to bring people back into the fold.)

 

Tosfos Pesachim (113b, see B.M. 32b) explains away the contradiction in gemara’s by positing two levels of hatred.   There is the permitted hatred for the baal aveira due to his specific sin, and then there is the problem of that hate spinning out of control and developing into a vicious cycle of recriminations and hostility between both parties.  You can hate the guy for the specific aveira he did, but you still have to help him out lest that hate turn into something greater if left unchecked. 

 

According to the Rambam, sinah is pushed aside completely because we are dealing with a case that has sakanas nefashos ramifications.  According to Tos, the mitzvah of sinah remains in place, albeit tempered and held in check.

 

Two points of derush:

 

The din is that you only have to help unburden the donkey if it’s “imo,” with the owner's participation.  If the owner of the animal sits down for a coffee break and expects you to unload his animal, you have no obligation to do so.  Kli Yakar writes that this same principle applies to tzedakah.  This serves as an open rebuke, he writes very forcefully, to those who expect others to support them but make no effort to earn their own keep or better their situation.

 

That point is worth a whole post in itself, but it's not my topic.  I want to come back to the Maharam Shi"k.  The chassidishe seforim see the pasuk as alluding to your neighbor who is struggling under the burden of chumriyos, under the burden of aveiros, turning  him into a sonei.  "Imo" has an important lesson here too.  Don’t think you can willy-nilly lift your neighbor up and force him back into the fold against his will.  It only works if happens “imo,” with his participation and cooperation, and that has to be earned. 

 

Second point is an amazing Meshech Chochma, who points out that this same mitzvah appears in Parshas Ki Teitzei with one important difference:

 

 לֹא-תִרְאֶה אֶת-חֲמוֹר אָחִיךָ אוֹ שׁוֹרוֹ נֹפְלִים בַּדֶּרֶךְ וְהִתְעַלַּמְתָּ מֵהֶם הָקֵם תָּקִים עִמּוֹ:

 

Lo tireh es chamor achicha or shoro niflim ba’derch… hakeim takim imo (devarim 23:4)

 

No longer are we speaking about the “sonei.”  Instead, the mitzvah is defined as helping “achicha.”

 

Says the Meshech Chochma: Parshas Mishpatim is pre-cheit ha’eigel.  When Klal Yisrael was unsullied by sin, then a baal aveira can be a sonei.  But we don’t live in that world anymore.  Each and every one of us has our own burdens of cheit.  Therefore, don’t be so quick to look down on the other guy.  Now, everyone is achicha.

story time

In Sivan Rahav-Meir's parsha shiur last week she noted how until Parshas Mishpatim, the Torah is a book of stories -- narrative, not law.  Parshas Mishpatim changes all that.   She then related how her little daughter learned the parsha in school.  The teacher discussed with the class what would happen if one child borrowed a sweater from another child: what are the responsibilities of the borrower, what should be done if something happens to the sweater, etc.  Sivan Rahav-Meir commented that she thought this showed the genius of the gannenet.  Instead of teaching laws -- not very appealing to 5 year olds -- the teacher turned Mishpatim into more stories.  The parsha of shomrim thus became the story of a borrowed sweater. 

Sivan then remarked that this works great for little kids, but we adults don't approach the parsha in the same way.  For us, there is that great shift from stories to halacha.

On this point, I beg to differ.  We never outgrow stories, and Chazal know it!  There is no Mishna, for example, that talks about "mammon ha'mutal b'safeik" in the abstract, the way a law book might present it, the way a lamdan discusses the theoretical foundation.  Instead we have a story: two people are holding a talis, each one says the talis is mine, etc.  Maybe our brains are naturally wired to absorb stories; maybe there is some other explanation as to why Chazal present it in this way. What do you think?

"eved ivri" and not "eved yisrael"

This limud should be l'zecher nishmas my father whose yahrzeit is this Shabbos.

Meforshim are bothered by the term "eved ivri."  Why not "eved yisrael?"  Putting aside the fact that the term "Ivri" is ambiguous (is an "Ivri" someone who comes from a place, "Eiver ha'Nahar," or is it a people, or something else?  -- see Ibn Ezra), the fact is throughout chumash we are referred to as Bnei Yisrael.  Therefore, if we are referring to a member of Klal Yisrael who became a slave, shouldn't it be "eved yisrael?"

If you remember the parshiyos from earlier this year (or cheat and use a concordance) I think the answer will be clear.  The term "Ivri" comes up again and again in the beginning of Shmos.  A few examples: the "miyaldos ha'Ivriyos: (1:15) save Jewish babies, including Moshe, who bas Pharoah refers to as being "m'yaldei ha'Ivrim." (2:6)  Later, Moshe goes out and sees an Egyptian hitting an "ish Ivri" as well as two "Ivrim" who are fighting.  Hashem tells Moshe to tell Pharaoh that the G-d of the "Ivrim" has appeared to him (3:18).  At this point in history there is no Jewish nation.  There is a large family, a tribe of related members.  It is only later, post-exodus, after kabbalas haTorah, that we become a nation.  Once that happens, the term "Ivri" vanishes.  The only occurrence of the term "Ivri" after the exodus is in reference to the Jewish slave.  We are now Bnei Yisrael, Am Yisrael, not Ivrim. 

Perhaps the Torah deliberately uses the term "Ivri" with respect to the slave to indicate that the slave has forfeited his identity as a "citizen" in the nation of Am Yisrael.  He still retains his relationship to us as a people, he still retains his identity as a member of the family/tribe of bnei Avraham, Yitzchak, and Yaakov, the organizational unity of "Ivrim" that pre-dates our nationhood, but he has forfeited his rights and privileges beyond that.

In Parshas Shmos, when Moshe and Aharon first appear before Pharoah, they tell him (5:1) that "Hashem Elokei Yisrael" has demanded the release of his people to celebrate a "chag."  Pharoah responds that he does not recognize the deity they are talking about and therefore won't agree to terms.  Moshe and Aharon then repeat the same request (5:3) using slightly different language, telling Pharoah that "Elokei ha'Ivrim" demands the release of his people to offer sacrifices to him.  This time Pharoah throws them out.  Why did Moshe and Aharon think repeating the request a second time would make a difference?  And why was Pharoah's response so much harsher this second time?

Netziv explains that when Pharoah heard the term "Elokei Yisrael" he assumed Moshe and Aharon were speaking about letting the spiritual elite of the people go out for a celebration, a chag.  Yisrael is the name Yaakov is given only after he manages to overcome Eisav's angel -- it is a mark of accomplishment.  Pharoah at least hears this request, but is not willing to give in.  Moshe and Aharon realized the misunderstanding and immediately clarified.  It was "Elokei ha'Ivrim," that spoke to them -- G-d of the entire tribe/family, the G-d of the "Ivrim," the downtrodden slaves, not just G-d of the elite.  Everyone needs to be let free to worship.  This Pharoah is not even willing to hear.

It's not "eved yisrael" -- the term "yisrael," as Pharoah understood, is one of chashivus.  Rather, it's "eved ivri" -- a slave has no status.  A slave has forfeited his membership in society, in the nation.

The torah of Ishbitz (see Ne'os Deshe, Beis Yaakov), k'darko, explains that the aim of the Torah here is not to put the slave in his place and stress that he has become an outcast.   Aderaba, the real lesson here is not about slavery, but rather about redemption.  "Ba'shevi'i yei'tzei chofshi" -- the lesson is that even this downtrodden lowly slave can achieve freedom and be rehabilitated .  No outcast is beyond hope; no one is a lost cause, a permanent slave to kinah, tayvah, kavod, or whatever the addiction. 

This explains why our parsha seems to start in the middle of the story.  How did this individual become a slave?  Ikar chaseir min ha'sefer!  Rashi helps us out and explains that we are dealing with a thief who was unable to pay for his crime and therefore was sold as a slave, but all that is missing from the text.  Why does the parsha not start from the beginning of the story, with hilchos gezel and then explain how and why someone becomes a slave?

The answer is that the main idea of our parsha is not the sin of theft or its consequences that lead to slavery.  The main idea of our parsha is the possibility of redemption after the crime.  The seventh year is not just a cessation of work, a shev v'al ta'aseh, so to speak, but rather is a kum aseh, as transformative and rehabilitative experience that changes the gavra of the slave, restoring him to shleimus.

This opening serves as the maftei'ach to the entire parsha of mishpatim.  Why should I be held responsible for damaging another person, for damaging his property, for not respecting his rights?  It starts with the recognition that any and every individual -- no matter who he is, no matter his station in society, no matter how downtrodden he may be -- has inherent value; there are no outcasts that are beyond being worthy of care.  The most worthless member of society is just waiting for "ba'shevi'i yei'tzei chofshi." 

When I was in high school there used to be a faculty member who would like to ask how many times the aseres ha'dibros appeared in chumash.  The trick was to know that Ramban writes that our parsha of Mishpatim is a recapitulation of the aseres ha'dibros, so the dibros in effect appear 3 times and not 2.  Ramban writes that the parsha of the eved ivri parallels the first commandment of "Anochi" which says that G-d took us out of Egypt.  The freedom granted to the eved ivri parallels our freedom from Mitzrayim. Ramban then goes a step further and says our parsha of eved also contains elements of the dibrah of Shabbos because the slave goes free after six years of work just like Shabbos comes after six days of work.  If our thesis re: the rehabilitation of the eved is correct, then the same thought can be extended to Shabbos.  Shabbos is not just a day of cessation of work, but is a transformative, rehabilitative, redemptive experience that restores our sheleimus, our self-worth, our commitment to membership in Am Yisrael the nation, not just the tribal notion of "Ivri." 

Let's experience Shabbos that way.

Rav Kook on "na'aseh v'nishma"

What's so special about "na'aseh v'nishma?"  When Nancy Pelosi said, "You have to pass this bill to see what's in it," her mindless lemming followers did exactly that.  "Na'aseh v'nishma!" -- we'll learn the details after we accept it as law.  Is this really the secret about which Hashem said, "mi gilah raz zeh l'banay," who revealed this great secret to my children?!  Is this the secret which Bnei Yisrael is praised for discovering?!

There is another gemara that uses almost identical language, but in this case the revelation/discovery of the secret led to condemnation instead of praise.  The gemara (B"M 85) writes that Eliyahu haNavi revealed to Rebbi that R' Chiya and his children had a amazing koach ha'tefilah.  Next fast day due to lack of rain Rebbi knew exactly to appoint as shat"z -- R' Chiya.  Sure enough, when R' Chiya said "mashiv ha'ruach u'morid ha'geshem" it immediately started to rain.  Upstairs in shamayim they realized something is up, and if R' Chiya continues and gets to "mechayei meisim" there are going to be big consequences.  "Man gali razya b'alma?" says the gemara -- same expression that Hashem used with respect to "na'aseh v'nishma."  Who let the cat out of the bag and revealed the secret?  Yet here the gemara says Eliyahu was punished and was forced to interrupt R' Chiya's davening lest he finish and bring mashiach too early.  Why is it that when Bnei Yisrael intuited the angelic secret of "na'aseh v'nishma" (whatever that means) and revealed it in the world, it's a great thing, but when Rebbi revealed the secret he had learned from Eliyahu, it's something that the world cannot tolerate? 

Mindless obedience is demanded by dictators, cults, and Democrat congressmen (I repeat myself) like Nancy Pelosi.  It's not a chiddush and is not what na'aseh v'nishma is all about.  To understand what it is about, let's look at two different skills:

Daughter #3 plays guitar.  Had you handed her a guitar when she was starting out and asked her to play a song, she would have been confounded.  First came learning a few basic chords on a smaller size instrument that allowed for her to learn how to position her hands and fingers.   Then came an upgrade to a better, full size guitar.  Then came more chords and a few basic songs.  Now she can play a small repertoire, but is still learning.  That's how it works with all subjects, all fields of study.

Compare that with a spider web -- Charolette's web.  A spider doesn't go to spider school and start with learning how to make a basic web and then progress to bigger, more complex webs, getting promoted from one spider web class to the next.  A spider is born knowing how to spin webs, period -- it's part of what a spider is.

Rav Kook explains that "na'aseh v'nishma" means that Torah is to Klal Yisrael what spinning a web is to a spider.  We can "do" Torah and do mitzvos without having any prerequisites -- it's built into who we are.  It's not something we absorb from the outside through training, through learning, but rather is part of our essence, much as a malach fulfills Hashem's will because a malach's essence is serving as a shliach.  This is the angelic "secret" which Klal Yisrael intuited. 

My wife was recently reading Herman Wouk's (can you believe b'li ayin ha'ra that he is still alive?) The Language G-d Talks and she pointed out an interesting passage where he mentions his engaging Richard Feynman (to my 5T/Far Rockaway neighbors -- can you believe he grew up on Cornaga?) in a discussion of Talmud.  Feynman was a great physicist, but had no use for religion.  Nonetheless, he immediately took to the Talmudic analysis.  How can someone with no background do that?  Wouk writes (p. 157):

Because we are alike.  Alike in the joy of following and grasping ling strings of tight logic -- alike in the zest for the toughest mental challenges, in the rejection of flawed answers, in the glory when the elusive true answer dawns -- do you have a Talmudic mind?  Sure call it that, because if you say 'Yiddishe kop,' Jewish head, you'll enrage the geneticists and get called racist by fools.  Of course it's cultural, it's an inheritance from grandfathers, great-grandfathers, forefathers, all the way back to Babylon, and they all studied the Talmud, and that's why you're Feynman, I assure you.

In other words, na'aseh v'nishma -- it's built into who we are. 
 
We can now understand why the case of R' Chiya's tefilah is different.  Just as na'aseh v'nishma defines our essence as a people, each individual tzadik has something unique that defines their individual essence as well.  That is their "raz," the secret of who they are -- it is their identity alone and does not belong to the world as a whole, which may not be ready for it or capable of accepting it.     

The gemara (Brachos 6) tells us that Hashem's presence is there when 10 people come together to daven, when 3 sit for a din torah, when 2 learn together, and even when one person is learning alone.  Asks the gemara: if Hashem is there for one, then certainly he is there for 2 -- why does that have to be spelled out?  To which the gemara answers that  two get the additional bonus of their good deed being recorded in the "sefer ha'zichronos," so it deserves mention above the reward for one.  Asks the gemara: once we know that is true of 2, it goes without saying it's true of 3 -- why spell it out?  The gemara answers that I might have though that a din torah is "shlama b'alma," just a negotiated settlement to make peace, a way to iron out civil disputes, kah mashma lan that "dina nami havi torah," the administration of civil justice is also torah, and Hashem therefore is present. 

I think this gemara is a good introduction to parshas Mishpatim, the parsha more than any other devoted to civil law.  What the gemara seems to be saying is that for us there is really no such thing as civil law, i.e. as google defines it, law "concerned with private relations between members of a community rather than .... religious affairs."  That's "shlama b'alma."  Mishpatim are torah too, as nothing for us is devoid of religious meaning.  

I recently saw a Rabbi write in response to the OU policy statement on women rabbis that in his shul the woman rabbi [or whatever she is called] would give the derasha that Shabbos as an act of "sacred civil disobedience."  I thought that was a funny expression.  Can you have "civil disobedience" when the issue is a matter of religious law? 

Anyway...

The Midrash (30:11) writes that Torah was given to Bnei Yisrael in the morning, but it was only in the evening, "erev," that mishpatim were given.  What's the significance of morning vs. evening here?

The Sefas Emes in last week's parsha asks a great question: Yisro said to Moshe that if he, Moshe, is the only judge in Klal Yisrael, he is going to wear himself out, as the people are standing and waiting for him "min boker ad erev," from morning till evening (18:14).  Rashi comments: it's impossible that Moshe sat in judgment that long [see Sifsei Chachamim].  The pasuk uses that expression, "boker at erev," to echo the words of creation, "va'yehi erev va'yehi boker," to teach us that a judge who sits and judges honestly even for one hour gets credit as if he participated in the creation of the world.  If that's what the pasuk means, says the Sefas Emes, then what was Yisro so concerned about?  Moshe wasn't there literally all day-- it's just a figure of speech! 

Explains the Sefas Emes (5635), "boker," when the sun is rising and everything is bright and fresh, alludes to clarity.  "Erev" is when things are mixed up (ta'aroves = mixture) and muddled.  A judge has to take the ideal abstraction of law, which is so clear and refined, and apply it to the messy muddle of contradictory facts and stories that come before him.  A judge has to act as the bridge between "boker" and "erev."  Whether you are sitting on a case for an hour or for months, makes no difference -- spanning that gap is hard work.  That's what Yisro was so concerned about.

This explains why Moshe didn't come up with the idea of appointing judges himself.  Moshe saw everything with perfect clarity -- nothing was ever muddled in his eyes.  "Kol aliyosav b'hashkama" -- the literal meaning is that he always ascended Har Sinai in the morning; the figurative meaning is that when Moshe approached the law, Har Sinai [yikov ha'din es ha'har], it was always morning, "hashkama," "boker," a time of clarity.  There was no gap in his eyes that needed to be spanned. 

The Ishbitzer in Mei HaShiloach writes that coming from Parshas Yisro into Mishpatim is like going m'igra ramah l'beira amikta, from the heights of a mountain to the depths of a pit.  In other words, it's going from boker to erev.

Our Midrash perhaps reflects the same idea.  Torah was given in the morning -- there is clarity in abstract principles.  Mishpatim are for the evening, when two ba'alei din are standing before the judge offering competing versions of events, competing versions of truth and justice.  Suddenly the truth is not so clear.

The Beis Ya'akov of Ishbitz goes a step further and writes that the true test of whether Parshas Yisro has been internalized only comes this week when we read Mishpatim, when the ideal principles are tested in the real world.

One last point -- were it not Parshas Shekalim we would be reading machar chodesh this week.  Since I will probably forget to link to it the next time that comes up, let me give you the link now to a vort on the haftarah  from R' Meir Bloch, the Telzer R"Y, that R' M Sorotzkin said in his hesped for R' Moshe Shapiro, at the 7:00 minute mark:

ta’aroch lifanay shulchan neged tzorerai - talmud torah

It's been a busy week, but I finally found a moment to get in a few follow up notes on some things I wrote last week.  I mentioned Rashi’s analogy that the teaching of mishpatim must be like a “shulchan aruch,” like a banquet that people will enjoy eating. My wife suggested that David haMelech was perhaps alluding to this when he said, “Ta’aroch lifanay shulchan neged tzorerai.” (The 23) David was asking that Torah should be for him like this “shulchan aruch” that he will enjoy delving into, and in this way, “neged tzorerai,” he will be able to overcome his yetzer ha’ra, and maybe through the power of Torah defeat his external enemies as well. “Dishanta ba’shemen roshi” – oil is a symbol of chochma, which is found in the head, so this too is perhaps an allusion to the study of Torah.   

Last week I also mentioned the the pasuk, “Lo te’hiye m’shakeila v’akarah b’artzecha.” The Lubavitcher Rebbe has a beautiful interpretation of this pasuk. The word “eretz” shares ther same root as “ratzon,” e.g. the Midrash (Braishis 5:8) says that Hashem called the land “eretz” because “she’ratzta la’ason retzon konah,” it desired to fulfill G-d’s will. The bracha in our pasuk can be read to mean that your desires (artzecha – your ratzon) should not be barren and given to fruitless endeavors. 

Finally, on to this week: if I were making an appeal for building funds, I would first paint a picture of the wonderful edifice that would be built, and then ask people to pony up the cash. Parshas Terumah presents things exactly the reverse way.  The parsha first opens with the command, “V’Yikchu li terumah,” asking people to pony up their money, and only then gets into the details of what exactly would built. Maybe this just proves I would make a lousy fundraiser, or maybe why the parsha is put in that order is worth thinking about.

mishpitei Hashem emes tzadku yachdav

The Alshich writes at the beginning of our parsha that every civil society has a legal system, and when you look at an individual law here or there, it appears that their system is as just as ours.  However, if you look at the system as a whole, things start to break down.  It’s great to have a law that says you can have freedom of speech.  It’s great to have laws that prohibit discrimination.  But what happens when my free speech makes you feel discriminated against?  Which right wins?   “…Mishpitei Hashem emes tzadku yachdav.” (Tehillim19:10).  The mishpatim of the Torah are just not only when taken individually, but also when you take them as a whole.  A sugya in Bava Kamma has to fit with a sugya in Gittin.  A value in one area has to be consistent with and not contradict a value in another area.  It’s not a hodge-podge of different rules and rights that get thrown together, but it’s a coherent, unified whole. 

There is another difference between our mishpatim and those of the rest of the world.  Rashi writes that Moshe was supposed to present these halachos of mishpatim so that they would be like a “set table, ready to be eat.”  Rashi is not given to using unnecessary flowery language.  Why does he add this extra analogy here?  Ask any lawyer and he/she will tell you that no one (except for the lawyers involved) gains from a lawsuit.  It’s like a bump in the road that has to be smoothed over and dealt with, but no good comes from it.  When Reuvain and  Shimon have a din torah, says the Radomsker, everybody gains.  When the world becomes a more just place, Hashem has nachas ruach, and as a result,  more chessed comes into the world.  Chazal tell us that someone who wants to be a “chassid,” from the same root as chessed, should fulfill the halachos of nezikin.  When you run into mishpatim, din, conflict, damaging and painful circumstances, it of course feels like a bitter pill to swallow, but the challenge to Moshe was to teach us that it’s not a bitter pill, but a sumptuous banquet, a trigger for tremendous chessed.

This Shabbos Mevorchim Chodesh Adar will be my father’s first yahrzeit.  Everybody knows the gemara’s line (Ta’anis 29) “mi’shenichnas Adar marbim b’simcha,”  but the Ein Ya’akov quotes it with a slight variation: “Mi’shenichnas Adar **m’ma’atin b’aveil** u’marbim b’simcha.”  It's hard to believe a year passed and it's already time to be "m'ma'atin b'aveil" as the 12 months come to a close. 
 
(Shouldn’t the expression be something like “mi’she’higiya Adar,” or “b’zman Adar?”  Sefas Emes (in the likkutim) explains that Chazal were deliberate in their choice of language.  “Mi’shenichnas” = when Adar come in.  The quality of the month has to seep into you, it has to penetrate your bones.  It’s not about a calendar date.)

I was going to write something more personal about the yahrzeit, but in the end I decided not to, so I’ll just share one idea in the parsha. “Lo ti’hiye m’shakeila v’karah b’artzecha, es mispar yamecha amalei.” (23:26). What does the second half of the pasuk, the promise of long life, have to do with the first half of the pasuk, the promise of children?  They are two very nice things, but why put them together in one pasuk? 

Here’s the Seforno’s take (see also Chasam Sofer):

אֶת מִסְפַּר יָמֶיךָ אֲמַלֵּא. שֶׁתִּחְיוּ כְּמִדַּת הַשֶּׁמֶן אֲשֶׁר בְּנֵר אֱלהִים, וְהוּא הַלַּחוּת הַשָּׁרְשִׁי בַּתּולָדָה. וְהֵפֶךְ זֶה יִקְרֶה עַל הָרב שֶׁיָּמוּת הָאָדָם קדֶם שֶׁיִּכְלֶה הַלַּחוּת הַשָּׁרְשִׁי בֶּחֳלָאִים, יִקְרוּ מֵרעַ בְּחִירָה או מִצַּד הַמַּעֲרֶכֶת וְהַיְסודות. וְהִנֵּה בִּמְלאת לָאָדָם מִסְפַּר יָמָיו יִרְאֶה עַל הָרב בָּנִים לְבָנָיו וְיוּכַל לְלַמְּדָם, כְּאָמְרו "וְהודַעְתָּם לְבָנֶיךָ וְלִבְנֵי בָנֶיךָ" (דברים ד, ט), וִיתֻקַּן בְּחַיֵּי הַזְּקֵנִים עִנְיְנֵי הַדּורות, כְּמו שֶׁסִּפֵּר שֶׁקָּרָה בְּעִנְיַן לֵוִי קְהָת וְעַמְרָם.

Seforno tells us something important: long life itself is not a bracha.  The promise of added years is couched in the context of having children, and, when you have those added years, grandchildren as well, because it’s living long enough to see those future generations and have an influence on them which is the bracha.   
 
I am a difficult child : ) , but I think my father appreciated having that bracha of “es mispar yamecha amalei,” of seeing “banim [u’banos] l’banav.. v’yetukan b’chayei ha’zekeinim inyanei hadoros.” 

Isn't it strange that after a whole parsha of torts, damages, dinim, mishpatim, we have this concluding section with such beautiful brachos?  The Radomsker in that same piece writes that that's exactly the point: din is just a means to an end, a step along the road to bring out greater bracha.  Chodesh Adar should be the nahapoch hu so we see  all the dinim and mishpatim we suffer transformed finally into bracha v'yeshu'a. 

civil law and the source of human rights

1) Why does the Torah place open its discussion of civil law with the idea of eved ivri?  Why not talk about theft, propertly law, shomrim, etc,. all of which seem more common and more basic to establishing a just society than the laws of someone sold into slavery as a result of not being able to pay his debts?  And then there is the term “eved ivri” itself: Rashi already notes that it’s a confusing phrase – does it mean a slave (even non-Jewish) owned by a Jewish master, or does it mean the slave himself is Jewish?  Rashi has to connect the pasuk of “ki tikneh eved ivri” to another pasuk in Devarim of “ki yimacheir lecha achicha ha’ivri” to clarify and derive that it is in fact talking about a slave who is Jewish.  I was studying Chumash (a different parsha) with my youngest daughter a week or so ago and she asked a great question: if the Torah means what Rashi says, why doesn’t the Torah itself say so clearly?  We could ask the same question here: why does the Torah opt for the longer, more ambiguous phrase of “eved ivri” that requires a peirush Rashi to unravel instead of just simply saying “ivri,” which is both shorter and leaves no doubt that it means someone who is Jewish?  Lastly, the introduction of “ki tikneh eved ivri,” “When you acquire a Jewish slave…” seems unnecessary.  We are not discussing the laws of kinyanim here; we are discussing when and how the slave goes free.  The fact that the slave had to have been bought seems redundant and irrelevant to the main point of the parsha.  Why does the Torah bother to mention it?

When we hear the word “slavery” we immediately think of whippings, discrimination, perhaps even torture.  But this is not the concept of slavery the Torah speaks about in our parsha.  I would bet that if people went through the laws of avadim they might even find that they would be willing to trade their jobs with the job of being an eved because of the protections and security built into the system.  Why is the Torah’s concept of slavery so different than the concept we think of?  “Ki li Bnei Yisrael avadim” – Hashem has declared that we are his servants.  A Jew is not hefker.  We are responsible to Hashem, but by the same token, Hashem as our master looks after our interests as well. The Alshich explains that this is the meaning behind the phrase “eved ivri.”  Torah tells the potential slave master up front that when he buys a slave, what he is buying is an someone who already is indentured, someone who is already an “eved” and belongs to a Higher authority than their own.  There are limits to what can be done to the Jewish slave because ownership is not absolute – it must answer to a prior claim, to the real “owner” of every ivri, namely G-d.  Without that extra phrase “eved,” the entire moral thrust of the parsha is missing. 

It’s this concept of “ki li Bnei Yisrael avadim” which is the backbone for the entire parsha of Mishpatim and therefore serves as its first chapter.  Just this past week a news anchor declared that “our rights do not come from G-d,” something that would have been news to the founding fathers of the USA.  More importantly for us, it is a mistake the reveals the chasm between the Torah’s idea of rights, which do stem from G-d, from “ki li Bnei Yisrael avadim,” and the idea of rights in other cultures and societies. 

2) In an earlier post I wrote that the eved ivri is pierced only if he chooses to stay on with his master and not at the time that he chooses to sell himself because at the time he made the choice to become an eved he may not have known what he is getting himself into.  If after experiencing avdus he still hasn’t learned the lesson, then he deserves to be punished.  The Sefas Emes raises an objection: shouldn’t the choice to remain an eved be a less serious offense considering that the eved has gotten used to the situation and become habituated to it?  “Ahavti es adoni v’es ishti v’es banay…”  For better or worse, the slave is comfortable where he is and doesn’t welcome change. 

The answer is that it’s this habituation to being a slave that is exactly what we are punishing!  To say that one is comfortable being an eved only proves how low and degraded the individual has allowed himself to become. 

3) Let me end off with something about shekalim.  I don’t think there is a charity in the world that would turn away donations, yet that’s exactly what the Torah seems to suggest: “he’ashir lo yarbeh v’ha’dal lo yamit,” the rich can’t give more than a half a shekel and the poor can’t give less.  Shouldn’t the person who wants to give be encouraged, not turned away?

Some organizations send letters where you can just check a box to confirm the amount you want to give.  What’s interesting is the scale of the donations you can choose from on these letters: you have your organizations where the lowest amount is something like $18, but then you have the organizations where the lowest amount is $100 and it goes up exponentially from there.  It’s either a deliberate ploy to try to get a higher amount or it just doesn’t occur to them that some people may not have $100 to plunk down.  In either case, when you get that letter, you feel what’s the point of checking the box that says “other” and sending in your $18 – that’s clearly not what they are interested in.  The same idea holds true for shekalim. Imagine if when the shekalim were collected the first gut stepped forward with a huge  sack of money, the next guy has an even bigger sack, and then along comes a guy like me with a half shekel – I would just turn around and go home.  Why bother when clearly it’s the big rollers who are managing the whole show?  So the Torah says there is one box to check here: half a shekel.  Everyone can pitch in equally.

But what about the guy who is so motivated, who wants to give more?  The Sefas Emes says a brilliant answer: that individual is giving, and what he is giving is worth more than his dollars – he is giving others the opportunity to have a share and participate. He is giving part of “his” mitzvah to the tzibur so that everyone can have a chance.  That’s no less a form of generosity than writing a bigger check, and sometimes it's an even harder mitzvah to do.