Mishpatim, Shemos 21:1. Guest Post: Gilgulim

The Zohar at the beginning of the parsha associates Mishpatim, civil law, with Gilgulim, reincarnation.   Here is this week's Dvar Torah from Rav Pinchas Friedman, the Shvilei Pinches, kindly translated and supplied by my dear friend, Dr. Barry Fox.

“And these are the judgments that you shall place before them”

 Rashby Enigmatically Associates This Passuk with Reincarnation

This week’s parsha, parshat Mishpatim, opens with the words (Shemot 21, 1):  "ואלה המשפטים אשר תשים לפניהם"—and these are the judgments that you shall place before them.  Targum Onkelos renders this passuk as:  "ואלין דיניא די תסדר קדמיהון"—and these are the laws that you should present before them in an orderly fashion.  The simple and straightforward understanding of the Targum is that he is referring to the laws and guidelines mentioned in this parsha.  In the Zohar hakadosh (Mishpatim 94a), however, the divine Tanna, Rabbi Shimon bar Yochai, reveals an entirely different and novel interpretation of the Targum’s words.  According to the Zohar, he is referring to the order of judgments and punishments that dictate the reincarnation of neshamot—each person receiving his proper due.  This interpretation has perplexed the commentaries.  Where do we find in this passuk an allusion to the punishment of reincarnation?  Furthermore, what order—“seder”—of reincarnation is he referring to? 

To Teach Them the Reasons and the Meanings

Let us begin by presenting Rashi’s explanation based on the Mechilta and the words of the Tanna, Rabbi Akiva:  "ואלה המשפטים אשר תשים לפניהם - אמר לו הקב"ה למשה, לא תעלה על דעתך לומר, אשנה להם הפרק וההלכה ב' או ג' פעמים, עד שתהא סדורה בפיהם כמשנתה, ואיני מטריח עצמי להבינם טעמי הדבר ופירושו, לכך נאמר אשר תשים לפניהם, כשלחן הערוך ומוכן לאכול לפני האדם"—in other words, Moshe Rabeinu is instructed to not merely teach Yisrael the raw halachot pertaining to the mitzvot but also the reasons underlying the mitzvot.  The mitzvot should be presented to them like a table set with food—ready to be eaten. 

We can suggest that Rabbi Akiva’s elucidation is founded on the well-known fact that the word “chukim” refers to mitzvot that seemingly are not based on reason; whereas, “mishpatim” refer to sensible, logical mitzvot based on reason.  [See Rashi’s commentary to Vayikra 18, 4.]

Seeing as our passuk states:  “and these are the ‘mishpatim’ that you shall place before them,” Rashi deduced Rabbi Akiva’s intent; here Moshe was instructed to teach Yisrael the rationales behind the mitzvot, as well, so that they would be comprehended like “mishpatim.”  We can also suggest that this is the source for the Rambam’s statement (Hilchot Meilah 8, 8):  "ראוי לאדם להתבונן במשפטי התורה הקדושה ולידע סוף ענינם כפי כוחו"—it is appropriate for a person to explore the “mishpatim” of the holy Torah and comprehend them as thoroughly as possible based on one’s abilities.  He specifically employs the term “mishpatim” alluding to our passuk.

Notwithstanding, it behooves us to explain why Rabbi Akiva compared the command to teach Yisrael the underlying reasons for the mitzvot to a table set and ready for man to eat from.  If he intended to compare the reasons underlying the mitzvot to food delicacies which possess many flavors, then he should have compared them to the food itself and not to the set table.  [Translator’s note:  The Hebrew word “ta’am” means taste or flavor and also means the reason for something.]  So, what difference does it make if the delicacies are arranged on a set table or somewhere else? 

In truth, this question can also be asked regarding what we have learned in the Gemara (Berachot 55a):  "כל זמן שבית המקדש קיים מזבח מכפר על ישראל, ועכשיו שלחנו של אדם מכפר עליו"—while the Beit HaMikdash stood, the “mizbeiach” provided Yisrael with atonement; now, a man’s table provides atonement for him.  It is curious why our blessed sages describe the act and service of eating as:  "שלחנו של אדם"—a person’s table—upon which the edible delicacies are placed.  It would have seemed more likely to describe this act and service as “a person’s meal,” or something similar.  Additionally, what is the deeper connection between “a person’s table”—which provides atonement—and the “mizbeiach”—upon which sacrifices were offered?

Man Is Comprised of Four Basic Elements:  Fire Wind Water and Earth

Let us begin our enlightening journey by referring to what Rabbi Chaim Vital writes in Shaar HaKavanot in the name of his teacher, the Arizal:  "ענין השלחן ראיתי למורי ז"ל שהיה חושש ומקפיד מאד וזהיר לאכול בשלחן של ד' רגלים כדוגמת שלחן שבבית המקדש"—I saw that my blessed teacher was very careful to always eat off of a table with four legs, resembling the “shulchan” in the Beit HaMikdash.  It seems that the notion of a four-legged table is based on an important principle posited by Rabbi Chaim Vital in Shaarei Kedushah (1, 1) in the name of the Arizal.

As we know, HKB”H created man out of four basic elements:  fire, wind, water and earth—aish, ruach mayim, afar.  These four elements correspond to the four letters of the name Havaya.  Had man not sinned with the Tree of Knowledge, his body and soul would have existed in perfect harmony with regards to the four elements; and he would have lived forever.  When he sinned, however, the four elements were infused with a mixture of good and evil.  Consequently, it was decreed that man must die due to the separation of the elements from one another. 

He goes on to explain how all of the human attributes stem from the four basic elements.  The negative attributes stem from the evil portion contained in the four elements; while the positive traits emanate from the good in them.  He describes this as follows:

"דע כי כל המדות הרעות מושרשות בארבע מדרגות נפש היסודית מצד הרע והקליפה אשר בה, ולכן כל המדות הרעות נחלקות לארבעה מינים וזה פרטם:

יסוד האש, ממנו נמשכת הגאוה הנקראת גסות הרוח... ובכללה הכעס... יסוד הרוח, ממנו נמשך דיבור הנקרא שיחה בטילה... יסוד המים, ממנו תאוות התענוגים, כי כן המים מצמיחין כל מיני תענוג... יסוד העפר, ממנו מדת העצבות בכל פרטיו. ותולדתה אחת, והוא העצלות לקיים התורה והמצוות...

והפכם הם ארבע מדות טובות, נמשכות מארבעה יסודות הטוב שבנפש היסודית, והם הענוה שהיא תכלית השפלות... [תיקון יסוד האש שממנו הגאוה]. והשתיקה כאלם לא יפתח פיו לבד בעסק תורה ומצוות... [תיקון יסוד הרוח שממנו הדיבור]. והמיאוס בכל תענוגי הגוף ומותריו המוכרחים, [תיקון יסוד המים שממנו התאוה]. והשמחה התדירית בחלקו, כי כל דעבדין מן שמיא לטב, וגם לזרז עצמו בתכלית השמחה בעבודת קונו, [תיקון יסוד העפר שממנו העצבות], וכמו שכתוב (תהלים קיט-קסב) שש אנכי על אמרתך כמוצא שלל רב".

It follows, therefore, that all of the negative attributes can be divided into four categories.  For example, haughtiness and anger stem from the evil aspect of “aish.”  Idle speech stems from the negative aspect of “ruach.”  Earthly cravings and desires sprout forth from the negative aspect of “mayim.”  The negative aspect of “afar” gives rise to all forms of sadness—resulting in one’s laziness and indifference toward Torah observance and the performance of mitzvot. 

The converse is similarly true; the good, positive attributes originate from the good aspect of the four elements.  Humility stems from fire—correcting the tendency toward haughtiness.  Being silent and mute except when occupied with Torah study and mitzvot corrects the negative aspects of wind—the source of speech.  Disgust for physical delights and excesses corrects the negative aspects of water.  Being happy and content with one’s lot—knowing full-well that everything from above is aimed at our well-being—is the correction and tikun for the negative aspects of earth, the source of sadness.  This includes motivating oneself to serve Hashem with joy and eagerness. 

The Purpose of Offering a “Korban” Is to Correct the Four Basic Elements

With this introduction, we can begin to appreciate the explanation of the Tikunei Zohar (Tikun 24, 139b) regarding sacrifices.  The purpose of offering a korban is to make amends for the damage one’s transgressions have caused to the four basic elements:  “aish,” “ruach,” “mayim,” and “afar.” 

He writes that causing a defect in the four elements is tantamount to inflicting a wound in one’s soul.  This affliction causes the four elements to separate from one another; simultaneously, the elements of fire separate from the elements of water; and the elements of wind separate from the elements of earth.  The result of this separation is conflict and lack of harmony.  This causes the name of Hashem to abandon them—allowing the yetzer hara (known as Samael and Satan) to enter.  For, Hashem does not dwell where there is conflict and disharmony.  To remedy the situation necessitates the bringing of a korban from the elements that have been impaired.  When harmony is restored among the elements, HKB”H returns immediately and the Satan flees.  If he does not flee, he is consumed by the fire of the “korban”—as it is written (Vayikra 6, 5):  “the fire on the mizbeiach shall remain aflame in it.” 

The Four Basic Elements in the Offering of the “Korban”

It appears that we can reinforce this concept by suggesting how offering a korban might rectify the four basic elements.  The element of “aish” is rectified by the fire on the mizbeiach that consumes the korban.  The element of “ruach,” which is the source of speech, is rectified by the confession that the sinner made verbally in association with the korban.  The element of “mayim” was rectified by the salt that was offered with the korban.  Rashi (Vayikra 2, 13) explains that a covenant was made with salt from the six days of creation; the earthly waters were promised that they would be offered on the mizbeiach in the form of salt and the water libation on Succot.  The element of “afar” was rectified by the mizbeiach itself, which was built from earth—as it is written (Shemot 20, 21):  "מזבח אדמה תעשה לי"—you shall build Me a mizbeiach of earth.  This is the explanation of Rashi’s comment concerning the creation of man from the earth (Bereishit 2, 7):  "וייצר ה' אלקים את האדם עפר מן האדמה - נטל עפרו ממקום שנאמר בו מזבח אדמה תעשה לי, הלואי תהא לו כפרה ויוכל לעמוד"—Hashem took soil from the place of the future mizbeiach hoping that it would atone for man and allow him to endure. 

This coincides beautifully with what the Kedushat Levi writes (Shemini) concerning the Gemara (Pesachim 96a):  "טעון ביקור ארבעה ימים קודם שחיטה"—a korban must be inspected for four days prior to the slaughter to insure that it does not have any flaws.  He explains that during these four days a person was required to prepare himself—to sanctify his four basic elements and to elevate them from the status of an animal to that of a human being. 

This enlightens us to some minor degree as to why our teacher, the Arizal insisted on eating specifically on a four-legged table—like the “shulchan” in the Beit HaMikdash.  As pointed out, man’s table today atones for him in place of the mizbeiach.  We have also explained that a korban was offered to rectify all four basic elements.  Therefore, a person’s table—which is in lieu of the mizbeiach—should have four legs—alluding to man’s four basic elements which require tikun and atonement. 

The Purpose of Learning the Reasons for the Mitzvot Is to Rectify the Four Elements

Taking the high road, let us apply what we have learned to better comprehend Rashi’s comment citing the words of Rabbi Akiva:  "ואלה המשפטים אשר תשים לפניהם - אמר לו הקב"ה למשה, לא תעלה על דעתך לומר, אשנה להם הפרק וההלכה ב' או ג' פעמים, עד שתהא סדורה בפיהם כמשנתה, ואיני מטריח עצמי להבינם טעמי הדבר ופירושו, לכך נאמר אשר תשים לפניהם, כשלחן הערוך ומוכן לאכול לפני האדם"—HKB”H instructed Moshe not only to teach Yisrael the halachot and to review them several times but also to make sure that they understood the rationales behind them.  The reasons underlying the mitzvot are compared to a set table—“shulchan aruch”—ready for man to eat off of. 

We can suggest that at first glance it might seem preferable for a person to fulfill the mitzvot without any regard for their underlying reasons—performing them simply because the King commanded him to do so—like “chukim.”  Nevertheless, we have learned that the purpose of the mitzvot is to rectify and sanctify the four basic elements which comprise a human being—“aish,” “ruach,” “mayim,” and “afar.”  Hence, it is imperative that a person examine the reasons underlying the mitzvot, so that he will recognize which elements he must rectify with a particular mitzvah.  It is for this very reason that HKB”H commanded Moshe to teach Yisrael the rationales behind the mitzvot. 

In fact, we have learned this vital principle from the Rambam (Hilchot Temurah 4, 13).  He teaches us that it is worthwhile to examine the reasons for the Torah’s commandments in order to acquire proper perspective and act appropriately.  Here is what he writes:

"אף על פי שכל חוקי התורה גזירות הם ראוי להתבונן בהן, וכל מה שאתה יכול ליתן לו טעם תן לו טעם, הרי אמרו חכמים הראשונים שהמלך שלמה הבין רוב הטעמים של כל חוקי התורה... וכל אלו הדברים כדי לכוף את יצרו ולתקן דעותיו, ורוב דיני התורה אינן אלא עצות מרחוק מגדול העצה, לתקן הדעות וליישר כל המעשים".

Even though all the laws of the Torah are decrees, it is still necessary to explore them; anything you can find a reason for, you should do so.  It is said that Shlomo HaMelech ascertained the reasons for most of the “chukim” in the Torah.  This is necessary in order to overcome the yetzer and to achieve proper perspective.  Most of the laws of the Torah are merely good advice and guidelines from above to help us acquire proper perspective and act appropriately.

The Ramban (Devarim 22, 6) writes something similar while explaining a statement in the Midrash (B.R. 44, 1):  "לא ניתנו המצוות אלא לצרף בהן את הבריות".  According to the Ramban, the purpose of the mitzvot is to refine a person’s negative attributes.  He writes: 

"שאין התועלת במצוות להקב"ה בעצמו יתעלה, אבל התועלת באדם עצמו למנוע ממנו נזק או אמונה רעה או מדה מגונה, או לזכור הנסים ונפלאות הבורא יתברך ולדעת את השם, וזהו 'לצרף בהן', שיהיו ככסף צרוף, כי הצורף הכסף אין מעשהו בלא טעם, אבל להוציא ממנו כל סיג, וכן המצוות להוציא מלבנו כל אמונה רעה ולהודיענו האמת ולזוכרו תמיד... כי המצות המעשיות כגון שחיטת הצואר ללמדנו המדות הטובות".

The purpose of mitzvot is not for HKB”H’s benefit but rather for man’s benefit—to protect him from harm or improper beliefs or negative attributes; they also serve to remind him of miracles and wonders performed by HKB”H and to help us achieve a better understanding of Hashem.  Thus, the Midrash employs the phrase 'לצרף בהן'.  Just as silver is refined to remove its impurities; so, too, mitzvot are intended to refine a person and free him of impurities such as improper beliefs.  As a result, we will ultimately perceive the truth and remember Hashem.  Ultimately, the mitzvot teach us good midot.

According to what we have learned above, the purpose of the mitzvot is:  "לצרף את הבריות"—is to refine the four basic elements in man’s makeup.  As we learned from Rabbi Chaim Vital, all the midot originate from these four elements.  Hence, it is essential to explore the reasons underlying the mitzvot in order to subdue the negative aspects of the particular elements by means of the appropriate mitzvah. 

We now stand enlightened and can rejoice at having achieved a better understanding of Rashi’s explanation based on the words of Rabbi Akiva.  Moshe was instructed to teach Yisrael the reasons for the mitzvot:  "כשלחן הערוך ומוכן לאכול לפני האדם"—like a set table and ready for man to eat off of.  A set table must have four legs like the “shulchan” in the Beit HaMikdash--alluding to the tikun of the four basic elements by means of a korban or, correspondingly, by means of the delicacies on a person’s table.  Similarly, it is necessary to teach Yisrael the reasons underlying the mitzvot so that by performing the mitzvot they will rectify the four basic elements. 

The Purpose and Tikun Achieved through Reincarnation

Continuing along this exalted path, let us rise to the occasion and address Rashby’s words at the beginning of our parsha.  He associates the first passuk with reincarnation:  "פתח רבי שמעון ואמר, ואלה המשפטים אשר תשים לפניהם, תרגום ואלין דיניא דתסדר קדמיהון, אלין אינון סדורין דגלגולא דינין דנשמתין, דאתדנו כל חד וחד לקבל עונשיה"—he interprets the words of the Targum as stating that these are the order and rules concerning the reincarnation of souls; each one is judged and punished accordingly.  Let us introduce a fascinating concept that everyone should be made aware of.  This concept is presented in the sefer Binat Yissachar, authored by the great Rabbi Yissachar Ber Bloch, ztz”l—described as a holy, man of G-d. 

It is well-known from the Zohar hakadosh and the kabbalistic literature that HKB”H sends the sinner down to earth several times in various reincarnations.  The purpose of these reincarnations is to correct all of the harm and defects one has caused.  The Binat Yissachar poses an intriguing question.  What is the point of sending man down again as a reincarnation?  It is just as likely that not only will he fail to correct the previous damage, he may add additional sins to his resume that were not present in the previous incarnation.  In that case, it would seem preferable that the person did not reincarnate.

He provides an answer based on the well-known fact that sins originate from bad midot that are inherent in a person from birth.  A person born with the attribute of haughtiness will likely pursue honor and respect and be jealous of anyone that is greater and more important than him.  A person born with the trait of stinginess will refrain from acts of tzedakah and kindness.  Everyone’s sins are rooted in the bad midot that were inherent in his nature from birth. 

The Binat Yissachar concludes, therefore, that HKB”H reincarnates a sinner into a body with midot opposite to the midot of his previous body.  For instance, if he previously possessed the trait of miserliness, he will reincarnate into a body possessing the trait of being a spendthrift; or if the person possessed the trait of haughtiness and arrogance, he will reincarnate into a body that is naturally humble and modest.  Consequently, the person is more likely to improve his lot by means of reincarnation than to cause further damage. 

HKB”H Limits the Sinner to Three Reincarnations

I was struck by a wonderful idea.  Based on this fascinating introduction, I would like to provide an explanation for a concept presented by the kabbalists, originally from the Tikunei Zohar (Tikun 32, 76b).  HKB”H subjects the soul of the sinner to three reincarnations and no more.  If he fails to accomplish the necessary tikun for his flaws in those three attempts, his only recourse is Gehinom.  The Tikunei Zohar finds an allusion to this notion in the passuk (Shemot 21, 11):  "ואם שלש אלה לא יעשה לה ויצאה חנם אין כסף"—if he fails to perform these three on her behalf, she shall go free without charge. 

This is also the message concealed in the passuk (Iyov 33, 29):  "הן כל אלה יפעל אל פעמים שלש עם גבר"—all of this, G-d does twice, thrice with man—HKB”H only allows the sinner three chances to correct his defects via reincarnation.  Nevertheless, it still behooves us to explain why HKB”H limits a person to three reincarnations.  A simple answer might be because something that is repeated three times constitutes a “chazakah”—as we have learned in the Gemara (Shabbat 61b and more).

Yet, according to what we have learned from the Binat Yissachar, we can provide a very nice answer.  If we include man’s initial appearance and lifetime on earth and add his three reincarnations, it turns out that he visited this world four times.  We can postulate that each visit was meant to rectify one of the four basic elements.  Based on the nature of the four elements, we can expect the reincarnations to follow a logical order. 

For instance, let us suppose that during man’s first existence on earth the element of “aish” prevailed.  Consequently, he exhibited the bad midot that arise from “aish”—such as arrogance, anger and being overly strict.  This would compel HKB”H to reincarnate him initially into a body where the element of “mayim” prevails.  For “mayim” is the opposite of “aish”; therefore, he would no longer be inclined toward the bad midot stemming from “aish.”  Thus, he would be likely to correct the defect and damage caused in his previous existence. 

If he successfully corrects the damage and defects from his previous existence, he will merit ascension after his death to his resting place in Gan Eden.  Yet, if he fails again during this first reincarnation—falling victim to the bad midot arising from the element of “mayim,” such as lust, coveting and jealousy—HKB”H will reincarnate him a second time.  This time he will reincarnate into a body where “ruach” prevails instead of “mayim”—so that he will no longer be drawn toward the bad midot arising from “aish” and “mayim,” which he exhibited during his first two existences. 

Now, if he succeeds this time to rectify his flaws from the previous incarnations, all is well.  Yet, if he fails once again and succumbs to the bad midot stemming from “ruach”—such as wasting his time on frivolous endeavors, speaking lashon hara and lies and behaving sacrilegiously—he will necessarily reincarnate a third time.  In a third reincarnation, HKB”H will place him in a body personifying the basic element of “afar”—so that he will not be lured toward the bad midot arising from the elements of “aish,” “mayim,” and “ruach.”

Once again, if he successfully corrects the damage wrought in his previous lifetimes—wonderful.  If, however, he fails once again; if he is drawn toward the bad midot arising from “afar”—sadness and laziness—there is no purpose in bringing him back for a fourth reincarnation.  For, he has already visited this world four times, each time in a different body, personifying one of the four distinct basic elements.  Since he was unsuccessful in rooting out and overcoming his bad midot in these four attempts, there is no purpose in returning him to a fourth human form. 

At last, Hashem has granted us a small glimpse into the depth of Rashby’s wisdom.  Rashby began with the following elucidation:  "אלה המשפטים אשר תשים לפניהם... אלין אינון סדורין דגלגולא דינין דנשמתין, דאתדנו כל חד וחד לקבל עונשיה"—the judgments and laws alluded to in the opening passuk of our parsha pertain to the order and process of reincarnation—a method of tikun for neshamot.  He followed in the footsteps of his rebbe, Rabbi Akiva, who derived from the passuk:  “these are the judgments that you shall place before them”—that here Moshe was commanded to teach Yisrael the reasons underlying the mitzvot; he was to present them to Yisrael like a table with four legs, set and ready to eat off of.  This would enable them to rectify the four basic elements man is comprised of. 

Hence, Rashby explains that the purpose of teaching Yisrael the reasons underlying the mitzvot is to spare them the orderly process of reincarnations.  As we have learned, a person who fails to rectify his four basic elements must necessarily reincarnate three times.  With each renewed existence, he is meant to overcome one of the four elements.  Thus, we can appreciate the gravity and importance of knowing the reasons underlying the mitzvot.  This vital knowledge and tool will allow us to rectify all four basic elements without the need for three reincarnations. 

Mishpatim, Shemos 22:21. Afflicting Widows and Orphans

כא כל אלמנה ויתום לא תענון.  כב אם ענה תענה אותו כי אם צעוק יצעק אלי שמוע אשמע צעקתו.  כג וחרה אפי והרגתי אתכם בחרב והיו נשיכם אלמנות ובניכם יתומים. 

Rashi:

והיו נשיכם אלמנות: ממשמע שנאמר והרגתי אתכם, איני יודע שנשיכם אלמנות ובניכם יתומים, אלא הרי זו קללה אחרת, שיהיו הנשים צרורות כאלמנות חיות, שלא יהיו עדים למיתת בעליהן ותהיינה אסורות להנשא והבנים יהיו יתומים, שלא יניחום בית דין לירד לנכסי אביהם לפי שאין יודעים אם מתו אם נשבו:

The passuk says that if a person afflicts a widow or orphan, if they cry out to Hashem He will listen and His anger will burn and the oppressor will be killed, and his wife will be a widow and his children orphans.  Rashi asks, if he is killed, then to say that his wife will be a widow and his children orphans is redundant.  Rashi answers that there will be a double tragedy- that there will be no witnesses to his death, and his wife will never be able to marry for fear that her husband is still alive; his heirs will never be able to take over their estate because the court will require proof of their father's death.  Thus, the passuk is saying that his wife will forever remain a widow and his children forever orphans.  Their loss will be ongoing- they will never have the closure that would allow them to move on to a normal life.

For some reason, I feel a special desire to say something from Harav Baruch Sorotzkin.  Here is a true mussar haskeil from Harav Baruch Sorotzkin, as relayed by Harav Shimon Kalman Goldstein, who learned with him bechavrusa second seder for seven years.

1.  What is the Middah Ke'neged Middah underlying the terrible punishment here?  What is it in his behavior that warrents the punishment that his wife will be left forever disconsolate and his children unable to use what he left for them?   

2.  Why are so many words repeated in these pesukim?  ענה תענה, צעוק יצעק, and שמוע אשמע?  

Harav Sorotzkin answered that when you hurt a regular person, the pain he suffers is from what you did to him.  When you hurt a widow or an orphan, not only do they suffer the pain of the wound you inflict, but the widow knows that if her husband were alive, he would protect her- but he died.  The orphans know that if their father were alive, he would protect them, they wouldn't be miserable and abandoned- but he died and left them alone.  When you hurt a widow or an orphan, you are hurting them twice.  Not only do they suffer the pain of what you did directly, but they re-experience their loss of their husband and their father, you open an old wound and multiply their pain.  The Ribono shel Olam says, if  ענה תענה, if you inflict this double pain, and  צעוק יצעק אלי, then שמוע אשמע, I will do to you what you did to them.  Your family will not only lose you, but the pain of their loss will never end.  Your widow will never be able to re-marry, and your children never will gain access to what you put away for them.  Every day they will be reminded that you are not there.  

Mishpatim, Shemos 23:5. Humane Treatment of Animals. צער בעלי חיים

Many years ago, on Shabbos, one of my children was fooling around with the fountain in middle of a five hundred gallon outdoor fish tank and caused it to start spraying the water out of the tank.  Left like that, we expected that by the time Shabbos was over, the tank would have emptied out and all the fish would die.  I was not able to fix the fountain, because fixing it would be mesaken manna.  The children were very upset, but I told them that as far as I knew, Pikuach Fish is not docheh shabbos.  In the end, enough water remained under the pump for the fish to survive, and they grew fat and prospered until they froze solid seven or eight years later.


But as it turns out, maybe Pikuach Fish is docheh Shabbos, at least a little bit.  

• In this week's parsha (23:5) we learn the rule of פריקה, that the Torah obligates us to assist a man whose animal is overburdened by unloading it.  Rashi there in Shabbos  (קכח: ד"ה צער)  suggests that our passuk is the source for the prohibition against צער בעלי חיים, causing pain to animals.   Rashi, as do most Rishonim, paskens like Reb Akiva there that this is an issur de'oraysa.  This is how the Rama (CM 272:9) paskens.  Although Rashi says the source is Prika, other rishonim find many other sources for this din.  
• The Rambam in מורה נבוכים ג-יז writes that the fact that the Malach rebuked Bilaam for striking his donkey (Bamidbar 22:32)  shows that it is prohibited to hurt an animal for no reason.  Reb Mordechai Carlbach in his Chavatzeles HaSharon points out that the Rambam apparently thinks that this prohibition is so logical and self-evident that it applies even to non-Jews. 
• The Ramban and Chinuch (Mitzva 451) explain that the mitzvah of Shechita was given so that it will be killed in a manner which minimizes its pain. The same reasoning has been applied to אותו ואת בנו, לא תחרוש, and many other dinim.
• The Raavad and the Meiri מאירי בבא מציעא לב: derive this din from the commandment (Devarim 25:4) not to muzzle an ox while it is threshing.  
• The Ritva בשיטה מקובצת בבא מציעא לב. ד"ה תדע just says it's a Halacha Le'Moshe Mi'Sinai.

The Mesilas Yesharim says  ובכלל הענין הזה שלא לצער לשום בריה אפילו בעלי חיים ולרחם ולחוס עליהם, וכן הוא אומר (משלי י"ב): יודע צדיק נפש בהמתו, וכבר יש שסוברים (ב"מ ל"ב): צער בעלי חיים דאורייתא, ועל כל פנים דרבנן, כללו, של דבר הרחמנות וההטבה צריך שתהיה תקוע בלב החסיד לעולם, ותהיה מגמתו תמיד לעשות קורת רוח לבריות, ולא לגרום להם שום צער וכו'. 

The Gemara in Bava Metzia 85a has the famous story of Rebbi and the calf:  דרבי ע"י מעשה באו וע"י מעשה הלכו ע"י מעשה באו מאי היא דההוא עגלא דהוו קא ממטו ליה לשחיטה אזל תליא לרישיה בכנפיה דרבי וקא בכי אמר ליה זיל לכך נוצרת אמרי הואיל ולא קא מרחם ליתו עליה יסורין וע"י מעשה הלכו יומא חד הוה קא כנשא אמתיה דרבי ביתא הוה שדיא בני כרכושתא וקא כנשא להו אמר לה שבקינהו כתיב (תהילים קמה) ורחמיו על כל מעשיו אמרי הואיל ומרחם נרחם עליה

Reb Yakov Kaminetzky in his Emes L'Yaakov al haTorah says that although it is a machlokes tana'im whether Tzaar Baalei Chaim is De'oraysa or De'rebannan, everyone would agree that it is an issur de'oraysa to inflict needless pain on an animal.

To the best of my knowledge, even according to those opinions that the din derives from Mitzvos Asei like Shiluach Hakan and Perika, we never find צער בעלי חיים used as an Asei in the application of  עשה דוחה לא תעשה.  I assume that this is because avoiding an aveira is a Tzorech Adam, and there is no din of צער בעלי חיים where there is some tzorech.  

But we do find some cases where Chazal relaxed Issurim Derabanan that stand in the way of alleviating צער בעלי חיים.  One example of a kula is the Rambam 21 Shabbos 9, based on the Gemara in Shabbos 154b and 158b, that allows Perika of muktza objects.   וכן פורקין המשאוי מעל הבהמה בשבת משום צער בעלי חיים.   However, the Mishna Berura (OC 266 BHalacha in 9) holds that this hetter is not accepted le'halacha.  The Aruch Hashulchan does leave the hetter fully intact in 266:24.  However, as the Mishna Berura says in 308, we are not empowered to extrapolate to other cases.  

So even assuming that fish feel pain, Pikuach Fish is still not docheh Shabbos.  The most I could have done was call a gentile neighbor to help.

Just as an aside, when Reb Moshe learned of how veal were raised, he stopped eating white veal.  He felt that even though the prohibition of  Tzaar Baalei Chaim does not prohibit whatever yields some human benefit, the difference between white veal and red veal is so trivial and involves such tzaar for calves that he personally was repelled by it and didn't want to eat it.  This is very much like the Noda Be'Yehuda in YD II:10 who was asked whether a wealthy businessman is allowed to hunt for recreation on his forested properties.  (Perhaps he was interested in strengthening his social ties to his fellow businessmen- even then, people would network by getting together to "shoot birdies.")  In any case, he says that if there is any benefit at all, even  if you will not eat what you kill, it is muttar.  He then points out that in the Torah we only find Nimrod and Eisav named as hunters, so the questioner might want to re-think his leisure activities.  Muttar? Yes.  Ugly? Emphatically yes.  As he points out, we don't even make a Shehechiyanu on leather garments because they required an animal's death (Rama end of OC 223 and see the Noda Be'Yehuda's discussion in the Teshuva).

Another story- In my city there once lived a great and beloved tzadik and parush, Rabbi Winchester, whose tireless pursuit of chesed is legendary.  His son, Avi, says that Rabbi Winchester would take him to the Fannie Mae store, which sold non-kosher candy, and his father would stand outside while Avi went in and bought a five pound bag of broken peanuts.  Rabbi Winchester would take the bag to a park and give it to the birds.  He said that in the summer, the birds manage on their own, but in the winter, many of them starve, and he wanted to help them to survive the brutal weather.

Mishpatim, Shemos 22:6. The Oath of the Custodian

The Torah here teaches the duties of shomrim (custodians, bailees, people with whom a pikadon- a bailment of any property- is entrusted.)   They are the Shomer Chinam (Gratuitous Bailee,) the Shomer Sachar (Bailee for Hire,) the  Shoeil (Borrower,) and the Socher (Renter.)  

כִּי יִתֵּן אִישׁ אֶל רֵעֵהוּ כֶּסֶף אוֹ כֵלִים לִשְׁמֹר וְגֻנַּב מִבֵּית הָאִישׁ אִם יִמָּצֵא הַגַּנָּב יְשַׁלֵּם שְׁנָיִם. אִם לֹא יִמָּצֵא הַגַּנָּב וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֱלֹקים  אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ. עַל כָּל דְּבַר פֶּשַׁע עַל שׁוֹר עַל חֲמוֹר עַל שֶׂה עַל שַׂלְמָה עַל כָּל אֲבֵדָה אֲשֶׁר יֹאמַר כִּי הוּא זֶה 

The Likutei Shichos (1962) here brings and expands upon the Tzemach Tzedek. The Ribono shel Olam entrusted each and every Jew with a precious and beautiful thing: his neshama.  He is given the pikadon of a perfect neshama and obliged to keep it in perfect condition, even to elevate it to a higher level of kedusha.  He accepts this stewardship with an oath, a shevuah— שמשביעין אותו תהי צדיק ואל תהי רשע (Niddah 30b) be righteous, do not be wicked!  


If the soul is damaged, this is because its steward was negligent.  He was poshei’ah, — “al kol dvar pesha.”   How does such a thing happen?  “Al shor al chamor al seh ve’al salmo,” for the cattle, for the sheep, for the garment;  all these things lead to “al kol aveida,” to losing the holiness of the G-dly soul, because “asher yomar ki hu zeh”, he mistakenly thought that the ‘ki’ was ‘zeh.' he thought the means were the ultimate purpose, he thought that the appearance was the reality.  He explains that ‘zeh’ can only refer to the Ribono Shel Olam, (Mi Hu Zeh, Zeh Eili Ve'anveihu) because nothing else has any real being.  
‘Shor,’ the ox, refers to the destructive instinct, the evil impulse that exults in destruction, that drives a man to destroy himself and others; 
'Chamor,' the donkey, refers to ‘chamra afilu bitekufas Tamuz kerira lei,’ a donkey is cold even in the time of intense heat, which means that even in a time of clear hashgacha pratis, self evident divine providence, he remains cold and unmoved; 
‘Salma,' the garment, is the trait of rebelliousness, as it says “ubeged bogdim bagadu (which shows that the word 'beged' is a homonym for both 'garment' and 'rebellion'); This is the resistance to  the concept that we are servants of Hashem and should accept the direction of Gedolei Torah.
‘Seh,’ the sheep, is “seh pezura Yisrael,” sheepishness.  This is when the Jews adopt the character of the nations in which they are mixed, and forget their unique mesora.  

What is the best strategy for a person who sees that he is being poshei’a in the pikadon, that he is failing in his stewardship of his soul?  He should go to the gadol hador, to Elohim, to beis din, and learn to do teshuva.  His teshuva is “yeshaleim shnayim lerei’eihu."  A chozeir betshuva has to do twice as much as others do, as it says in the Iggeres Hateshuva “ragil likros daf echad yikra shnei dafim;" if he used to study one page, now he must study two.  If he does this, then these nefesh habehamis qualities will turn to avodas Hashem: when he does so, all these powers that drove him away from Hashem will change to methods of greater service to Hashem.  Rav tevu’os bekoach shor; Yisachar chamor garem; Rei’ach salmosa’yich ke'rei’ach levanon (Shir Hashirim 4:11), and instead of seh pezurah, mashceini achareicha, and he will serve Hashem with both yetzarim.

My father zatzal often quoted the Gemara there in Nidda later on that daf, and when I told this to him, he expanded on it and added it to this vort.  Tehillim 24:

מִי יַעֲלֶה בְהַר ה' וּמִי יָקוּם בִּמְקוֹם קָדְשׁוֹ. נְקִי כַפַּיִם וּבַר לֵבָב אֲשֶׁר לֹא נָשָׂא לַשָּׁוְא נַפְשִׁי וְלֹא נִשְׁבַּע לְמִרְמָה

מִי יַעֲלֶה בְהַר ה who will go up on the mountain of Hashem?   נְקִי כַפַּיִם— even one unjust penny stains the hands, and only a person with clean hands can go up.  וּבַר לֵבָב— this is about what the person thought about doing to other people.  Only a person with a pure heart, a person whose desire was to help others, not to take advantage of them.  לֹא נָשָׂא לַשָּׁוְא נַפְשִׁי— who is saying this?  If it is the person talking about his own nefesh, which fits into “nafshi,” then it should say “asher lo nasasi,” not “lo nasa.”  It is the Ribbono Shel Olam, who says eidus that the person didn’t use the neshama for nothing.  It is called nafshi because “mahn denafach migarmei nofach,” the neshama comes from Hashem.  What did the person use it for?  To eat kugel?  Every animal eats straw, and since people are smarter, they eat better straw!asher lo noso lashov nafshi velo nishba lemirma.  The Ribbono shel Olam gives each person a neshama for a purpose.  The purpose is to use it to accomplish good in the world, to become an adam gadol, to be mizakeh the rabbim.  Hashem has to be able to testify that this person לֹא נָשָׂא לַשָּׁוְא נַפְשִׁי, he did not carry around the holy neshama ‘lashav’, for nothing, that he accomplished his tafkid in the world.  And, as the Gemara in Niddah says, he did not make a Shevuas Shav, a false oath, when he promised to be a Tzadik.

NG added something nice to his discussion.  He mentioned that according to the Shem Mishmuel in Beshalach, we can explain the passuk in 22:14, אם בעליו עמו לא ישלם, if the owner is with him, he shall not pay (see Bava Metzia 94).  According to the Shem Mishmuel, this means that even if a person has failed in his duties to his neshama, even if he has sinned, if he achieves Dveikus with the Ribono shel Olam, he will be absolved.  If he comes to a dveikus of בעליו עמו, his slate is wiped clean, לא ישלם.

Mishpatim, Shemos 24:7. Cost/Benefit Analysis of Mitzvos

To my dear readers:  The current  (2/16/10) news has proven beyond any reasonable doubt that I made a serious error of judgment on this website. 

Earlier Divrei Torah on Mishpatim:

Gadlus in Torah Goes Beyond How Much You Know.  (2009)

The Torah Perspective on Self-Determination.  (2008)

On the Obduracy of First Impressions  (2007)

The Limitations on Majority Rule  (2007)

For 2010:

Klal Yisrael, offered the Torah, responded Na'aseh Ve'Nishma.  It’s amusing to note that this statement, which refers to our commitment to learn and do mitzvos, is in Shemos 24/7. (It’s only amusing, because perek numbers are arbitrary, and because “midvar sheker tirchak is in 23:7, which should mean that you can lie one hour a day.  Maybe that's for when your wife asks you how her sheitel looks on her.)

What was so remarkable about Na'aseh Ve'Nishma?  The Gemara in Shabbos 88 says that Hashem said “mi gila le'banai raz zeh," who revealed to my children this secret that the malochim use, this Seraphic Secret.  If Na'aseh Ve'Nishma means that our learning will be flawed unless we do it with the intention of fulfilling the Mitzvos, ahl me'nas la'asos, what does that have to do with the malachim?  They don't do anything ahl me'nas la'asos.

The Alshich, where the Torah discusses the building of the Mishkan, talks about all the precious wood, stone and metal.  He says says that one might wonder why we need all these luxurious and precious things to bring the Shechina. Wouldn’t purity and simplicity be a better matrix than extravagance? He answers that the Shechina was shoreh not because of the precious things, but because when the people donated them, when they brought these objects, they felt they were giving something extraordinary, something that embodied their desire to do their best, and they brought them with a sense of love and privilege.  It is when a person considers that his kiyum hamitzvos is a privilege, and he does it with love and pleasure, that the Shechina is Shoreh. The objects are simply things that we consider precious, and which are donated by people who honestly and deeply want to do their best for the Mishkan. (Rambam Isurei Mizbei’ach 7:11.)   This actually is not a lesson we only learn from the Alshich; this is something Hevel realized at the dawn of time.

Based on the Alshich, that it is the Ahava that is mashreh the Shchina, we can also say that the Na'aseh means that we will do the mitzvos realizing that it is our privilege to do them, that they show our love and gratitude to the Ribono shel Olam.  We will learn the meaning and significance of the mitzvos as a limud and as a method to advance out actions, but we will do them because Hashem told us to. 

Note, please, that this was a sea change from what Klal Yisrael had been doing until now.  The Avos, we are told, also fulfilled the Torah (Yoma 28b); But the Avos fulfilled the Torah because they understood their underlying reasons, and so every time they did a mitzvah, they had to decide whether under the circumstances it was the most efficient thing to do.  We do something they never did (with the exception of Milah).  We do Mitzvos qua Mitzvos, i.e., tzivuyim of Hashem because we accepted the obligation to follow Hashem's commandments.  We did this because it is Hashem's will that we do so, and we have a natural drive to bring nachas to the One that we love.  That desire for this entirely novel relationship with Hashem is expressed in Na'aseh Ve'Nishma.

When one buys a gift, or does a favor, for someone he loves, he does not stop to scrutinize the economic ramifications of his act.  When one does mitzvos with this attitude, one does not do a cost/benefit analysis.  This is the midda of Chanun, to do things lifnim mishuras hadin, beyond the call of duty.  This, then, is like the ahava that the Malachim have.

Mishpatim: Independence and Servitude.

The beginning of Parshas Mishpatim teaches the laws of owning a Jewish servant. Among these laws is the rule that a Jewish servant must be set free at the latest after six years of servitude. If the servant insists on remaining where he is, and staying in his condition of servitude, he may do so, but he must undergo “retzi’ah.” Retzi'ah means that his master nails him to the doorpost by his ear. This is obviously humiliating and uncomfortable. Rashi explains this with a drasha on the passuk in Vaykra 25– "Ki li Bnei Yisrael Avadim," "for it is to me that the Bnei Yisrael are servants". This is an awkward locution, since it could have simply said "Ki Bnei Yisrael avadai," "they are my servants." Rav Shimon says that the stress is on the "li," "mine." This passuk teaches that “avadai heim, velo avadim le’avadim.” They are my servants, not the servants of servants. The law of retzi'ah teaches us that it is shameful to be an eved, because you are avdei Hashem, and you must maintain your independence and dignity and self-determination. This lesson is so important that its presence justifies the placement of the parsha of avadim before any other din in the Parsha of Mishpatim. The Torah is telling us that as avdei Hashem, we must eschew the mind-set of subordination inherent in servitude, and most certainly the commodification of ones self.

What servitude, what debased state is the Torah warning us to avoid? See Choshen Mishpat 333:3 and Be’er Heiteiv 3, (easy enough to remember, especially in the Winter– it’s 333:3:3) where it says that since the Torah wants a Ben Yisrael to be independent, and not an eved to avadim, a person may not sign a contract that obligates him to work for someone for more than three years. Since an eved ivri is said to have worked “Mishneh schar sachir”, double the engagement of a regular employee, and the term of an eved’s servitude is six years, it must be that the maximum term of non-eved employment is three years and no more. (Sachir=X, Eved=2(X), Eved=6, so Sachir=3.) So we are not talking about debased and dehumanizing labor-- this applies to any contract that limits the employee's freedom to freely choose what to do. Obviously, not everyone is cut out to be an entrepreneur or a Thoreau, and many people are best suited to being employees. And to some extent, it is possible that an employee has more menuchas hanefesh and can focus his free time on spiritual pursuits. But the point it that this is an attitude, a self-image, that one should aspire to.

What about Rabbinical contracts? There is a machlokes whether a rav can sign a contract for more than three years! Some hold that a lengthy contract doesn’t compromise the rov’s independence, because the longer contract is to protect the rav from getting thrown out when he wants to stay– it is for the protection of the Rav, and so this halacha would not apply. Others hold that the longer contract is to protect the community from a Rav who wants to leave when they want him to stay– it binds the Rav for the protection of the community, and so the halacha would apply. See also the Ktzos there, who brings the Tshuvos Chavos Yo’ir and argues with him on this topic. So you see that no matter what the job is— even being a rov— if the contract is more that three years, you are dangerously moving away from schirus toward avdus, and this is assur.

Rav Schwadron’s sefer puts this concept into perspective: Who can be sold as an eved? A man who is so desperately poor that he cannot find any way to pay back what he stole. What conditions does he live under? It says in Devorim 15 “Ki tov lo imoch.” The Gemorah (Kiddushin 20a) explains that the master has to treat him with respect, and cannot give him menial labor. Furthermore, the eved must be fed, clothed and given bedding of a grade equal to that which the master has. Your wine is old, his wine has to be just as old. His bread is from Breadsmith, you can’t give him bread from a normal bakery. In fact, if the owner only owns or manages to buy two articles of clothing or bedding and one is of a higher quality, that good one goes to the eved, and the master wears the shmatteh. The Gemorah says that when you buy an eved ivri, you are buying yourself a master, koneh odon le’atzmo (Kiddushin 20a). So you can imagine that when the two are walking to shul, the master in a shmatteh and the eved in a good suit, a friend would come from behind and slap the eved on the shoulder and say “nice eved you bought there.” Who can buy an eved ivri with such restrictions and requirements? Only a wealthy man, and only a tzaddik who could handle the restrictions. So what conditions are we talking about here? A destitute man, reduced out of desperation to theft, is sold to the Chofetz Chaim, but a wealthy Chofetz Chaim, who takes care of all his needs, and buys him the best suits he can afford, and can only tell him to do things like take a letter to the post office. And the Torah says, if that man wants to stay an eved, nail his ear to the door, shame on him, avodai heim. You are servants of Hashem, and you should not be taking orders from other people. Don’t allow yourself to be in a position where you will not be absolutely independent. And if this is true when you sell yourself to the Chofetz Chaim, imagine how wrong it is to sell yourself to a sheigitz. And how wrong it is to sell yourself to a beheima, to an animal. “Sell yourself to an animal? What does that mean!” The answer is... “Ein lecho ben chorin elloh mi she’oseik batorah.” A person who does whatever his yeitzer horah wants is fahrkoift to his nefesh habehamis, he is an eved to his yeitzer horah. As the Romans used to say, Nemo liber est qui corpore servit. (The last sentence is not from Rav Schwadron.)


N.B.
1. My use of the term 'commodification' does not make me a Marxist.

2. I wonder why the Torah allows for Retziah at all? And why is the master not equally wrong in enabling this to occur?

3. I mentioned that the Halacha about not signing a contract for service for a term greater than three years is a citation that's easy to remember, since it's in CM 333:3:3. Another two-- Where does Reb Akiva Eiger say that you are yotzei Kiddush Mide'oraysa when you tell someone good Shabbos? In 271. That's Reish Ayin Aleph, Reb Akiva Eiger. And, of course, the most famous-- Where are the dinim of Birchos Harei'ach? In Reish Yud Ches? Nope. They're in Reish Yud Zayin. This tells you something about the Baal Haturim's attitude about this kind of stuff, not what you'd expect from reading the Baal Haturim ahl hatorah.

Mishpatim, Shemos 23:3. The Majority Rules, but not always.

The possuk here says אחרי רבים להטות, which teaches that the opinion of the majority is to be followed. There is an interesting set of shittos about the extent of this halacha. See Minchas Usher here.

A. What if the mi’ut is smarter than the rov?
Obviously, the difficulty in assessing relative chochmo, and the multiplicity of types of chochmo, make this difficult to apply with any confidence in the real world, but here are the shittos.

1. Hagohos Ashri Avodoh Zoroh 1:3 holds that chochmoh never outweighs the supremecy of the rov.
2. The Ramban Sanhedrin 32a holds that in a Beis Din, Rov supercedes chochmoh, but in a non-beis din context, you can do whatever you want. In other words, Rov is no longer determinative, but neither is the mi’ut chachomim determinative.
3. The chinuch in 78 says that Rov is only dispositive against a mi’ut chochom in Sanhedrin, but not in any smaller Beis Din.
4. Rav Hai Gaon brought in the Ramban is unclear. He might hold that you always go after chochmoh, even in Sanhedrin Hagodol.

B. What about community matters?

1. Some hold that all community matters can be decided by a simple majority, which is binding on the minority. Rosh Tshuvos Klal 6 Simon 5, Tshovus Rashbo 1:781, and Yam Shel Shlomo Chulin 1:end of 51.
2. The Mordechai in BK 179 and BB 480 holds that majority cannot obligate the minority to do anything ever, but he brings that the Ram holds that the selectmen, the Tuvei Ho’ir, have the ability to bind their communities even to the extent of hefker, while the Rashbo limits that power to gedolei hador mamosh.
3. The Maharshdam in AC 37 and CM 421 says that community matters are decided by the chachemi ho’ir, and community money matters by its money men, the rich and influential, (who are assumed to be the most responsible and sophisticated when it comes to such things).
4. See beginning of four perek of Maseches Megilla. The Gemora distinguishes between the limited powers of the Tovei Ho'ir acting alone and the broader powers of the Tovei Ho'ir acting pursuant to a referendum.

Mishpatim, Shemos 23:1. Lo sisa sheima shov - Ex Parte Communications and First Impressions.

Rashi here brings that this pasuk is the source of the the issur for a dayan to hear from a litigant when the other party is not present. Ralbag– the result of this communication, unchallenged by the opposite party, will be to create in the dayan’s mind the impression that his version is true, and the other side will have the burden of proof. Lawyers are familiar with this as the prohibition of “ex parte communication.” In fact, several lawyers I know have gotten into trouble for precisely this behavior.

The Dayan knows that everyone is lying, or hiding the truth, or, at best, is biased, and there are two sides, but the first version he hears makes an impression.  Once the impression is made, the other side will have the burden of overcoming the first impression. The same is true with everything we hear or learn, it makes an impression, and it’s hard to change- kivan d'al, al. As the Alter of Kelm said, the only "negius" that is impossible to eliminate completely is that of "muskol rishon" - first impression. This is because it is protected by both atzlus and gaivah, mental laziness and pride - two obstacles, each of which is formidable in its own right. (Last sentence not quoted from the Alter.)

The words are similar to those at Har Sinai– Lo sisa es sheim Hashem Elokecha lashav and Lo sisa sheima shav. Sisa and Shov both mean to carry in vain. Here, the vanity is that it becomes a barrier to other information.  The Torah is telling us “don’t let what you know be an impediment for what you still need to learn.”

As an introduction, I would like to tell a few stories about how hard it is to admit error, or to change your mind after a first impression.

There was once an apikorus who lay dying. Suddenly, he called out that they should summon the Rov, because he wanted to do tshuva. His students, gathered around his bed, were shocked. Professor, you have been an apikores your whole life, you made your reputation as an apikores– you’re a kofer b’ikker! What do you mean you want to do tshuva! He answered, “Adderabba! The Gemora says resho’im afilu ahl pischo shel gehenom einom chozrim bitesuva– Dos iz eich falsh.” (On the contrary! The Gemora says that the wicked refuse to repent even when they stand at the gates of Hell, and I say that this, too, is false.)

Chanania ben Azor, claimed to be a prophet and contradicted Yirmiahu’s dire prophecies by saying everything would be fine, and then Yirmiahu told him he would die before the end of the year for his false nevu’ah. As he lay dying before Rosh Hashonnoh he told his family to delay his burial till after the new year began so his death wouldn’t show he was wrong.

In arguments between Beis Shammai and Beis Hillel, we almost always pasken like Beis Hillel, because Beis Hillel considered the opinion of Beis Shammai before making a final halachic decision, while Beis Shammai ignored the opinions of Beis Hillel. In fact, the Mishneh in Eidios says that Hillel and Shammai themselves only argued without coming to an agreement in 3 places; in all of those three cases, who do we pasken like? We pasken neither like Beis Hillel nor like Beis Shammai. This is because the fact that they couldn’t ultimately agree indicated that neither was right, because they always did consider the other side’s opinion. If either had been right, the other side would have seen that, and would have retracted their view. The lesson of Shammai and Hillel, which was given over to the students of Hillel but not to those of Shammai, is that Conviction does not have to create mental paralysis.

This is true for everyone, not only true among jurists and intellectuals: People who daven for Amud, you will notice that they often pronounce the first three brochos differently than the rest. This is because they changed schools or got a different sort of rebbi. Think about how strange that is! They pronounce the first three brochos differently than other parts of davenning, because of the specific style of the teacher they had in first grade! That’s how they were taught, that’s the way it is. They are stuck forever, like a bug in amber.

In hashkofo also; most people have what they were taught when they were in grade school. This might be good pedagogically for ten year olds, but this is not so nice for adults. Most people only open their minds when they are traumatized. There is a joke in my family about a relative of ours– he has a mind like a steel trap. Once an idea wanders into his head, it snaps shut and you need a crowbar to open it.

I respect Dr. Anthony Flew. An atheist since age 15, professor of philosophy at Oxford, at age 81 decided that the big bang and the extreme complexity of self-reproducing life indicates intelligent design. (Or, as he later watered it down, “would be confirmatory to a faith in a creator.”)

I saw a reference to a paper published in 2005 by a man named Lewandowsky in Psychological Science. He says that “People build mental models. By the time they receive a retraction, the original misinformation has already become an integral part of that mental model, or world view, and disregarding it would leave the world view a shambles. People continue to rely on misinformation even if they demonstrably remember and understand subsequent retraction.” (Quoted in Wall Street Journal of February 4 2005 in a column by Sharon Begley.)

An excellent example of a very similar concept is the story involving Rebbitzen Sheila Feinstein. She asked someone to get her husband, HoRav Reuven Feinstein, from the dais at some event, and the person said that he knew that R’ Reuven and his brother R’ Dovid were on the dais, but how will he know which is which? The Rebitzen said that R’ Reuven has the black beard and R’ Dovid has the brown beard. The man came back a few minutes later and said, sorry, Rebbitzen, they both have grey beards! The Shviger simply didn’t realize it. She still thought of them as they were years ago, and her mental image trumped the reality.


The lesson is, we need to keep an open mind. Don’t suffer from arrested spiritual development. Ask questions, don’t stop until you find an answer that satisfies you. But even when you are satisfied, don’t be self-satisfied or smug, because the Torah warns us to keep an open mind, lo siso sheima shov. Take that Koheles off the shelf and see if Shlomo Hamelech has anything to say to you.


(See on this topic R Chaim Shmuelevitz page 198. I later found out that Malcolm Gladwell wrote a book, “Blink,” on exactly this topic. I don't think he brings down the Rashi or R' Chaim Shmuelevitz.)