Va'etchanan 5772 – Gilayon #760

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Parshat Vaetchanan

You shall say to your children: "we were slaves to pharaoh

in egypt

and the lord freed us from egypt with a mighty hand…

And us he freed from there, that he might take us and give us the land that he had

promised on oath to our fathers. Then the lord commanded us to observe all these

laws, to revere the lord our god, for our lasting good and for our survival, as

is now the case".

(Devarim 6:21-24)


WE WERE SLAVES. And because our servitude prevented us from achieving the

perfection He had intended for us, he performed wonders, taking us out [of Egypt]

and bringing us to the Land wherein we could achieve that perfection.

 (Sforno, Devarim 6:21)


COMMANDED US – And it also has become clear that the purpose of His taking

us out was to give us the Land, and for this [clarification] stand the commandments,

which are called eidut – testimony – such as the

Shabbat and appointed times which testify that God arranged nature and conducts

it with individual supervision, and the commandment to give gifts to freed servants,

and gifts to the poor, and compassion for one sold into servitude, and prohibition

of usury and false weights. All these were bound up with [the story of] the Exodus

from Egypt, for they all attest to individual supervision [hashgacha pratit] over

all the lowly and the indigent and the oppressed, and also the mitzvoth to be

observed in the Land are tied to the Exodus, because for this did He liberate us

from Egypt, to give us the Land, and this is the nature of this category of mitzvoth

called eiduttestimony.

(Malbim, Devarim 6:23)                                                                 


"And you shall do that which is straight and good in the

eyes of god": on religion and morality

Yonatan Ben-Dov

Is a religious act performed by devious means invalid?

Can a moral defect impair the legitimacy of a ritual act? For example, if one brings

to the Temple a

sacrifice originating in stolen money – should it be offered upon the altar? A negative

answer would seem to be obvious, but, as we shall see, there were sages who chose

a more compromising approach, finding it proper to dull the sting of the stringent

moral demand.

The Prophets, who related to similar problems, tended,

of course, to the stringent approach; the prophetic fire leaves no room for compromise

in this matter. Beginning with Amos (2:7), who warned that: "They recline by every altar on

garments taken in pledge, and drink in the house of their God wine bought with fines

they imposed", through Malachi (1:13), who reproved the priests for having brought defective

animals for sacrifice: "…and so you degrade it – said the Lord of Hosts –

and you bring the stolen, the lame, and the sick". Malachi does, indeed, include

the stolen alongside the physically defective among the invalid animals, but we

note that Torah law, in Parashat Emor

((Vayikra 22:17-25), relates only to animals with physical defects, saying nothing

about a stolen animal. This difference calls our attention to the basic duality

in evaluating immorality: Is it equivalent to a physical defect with regard to the

performance of the commandment or not? This duality will find expression in all

consequent halachic decision-making (p'sikah).

Let us focus on the classic instance of moral intervention:

the stolen lulav. The Mishnah

(Sukkah 3:1) determines unequivocally that "a stolen or dry lulav is invalid". It would seem that the laconic style

of the Mishnah places the two forms of invalidity alongside

each other: the disqualification in the body of the lulav,

and the moral defect, judging both with equal degree of stringency, just as did

Malachi with regard to animals offered at the altar. Aggadic

midrashim (such as Vayikra Rabba, Emor, parasha

30) and aggadic statements quoted in the Talmudim,

support this unambiguous determination by quoting the passage from Malachi and adding

homiletic messages – "Thus his defense counsel (the lulav

intended to placate the lord) becomes the prosecutor (= the stolen lulav becomes a reminder of sin)" or the concept of "mitzvah

habaah b’aveira" – "a

mitzvah performed through a transgression".

A halachic midrash (Sifra, Emor, 12:2) supports the prohibition, which, we recall, has no basis in

the Torah, and anchors it with scripture: "And you shall take for yourselves

on the first day… for yourselves=of your own, but not the stolen." From here

on, we have not only a moral imperative with support from the Prophets, but also

a Torah prohibition. Indeed, the deliberations on this prohibition in the Jerusalem

Talmud rule clearly that the stolen lulav is always invalid

because it is a "mitzvah performed through transgression."

The discussion in the Babylonian Talmud (Sukkah 29b-31a) presents different picture. At the heart of the discussion is

a controversy between R' Ami, a Palestinian scholar, and Shmuel,

one of the earliest Babylonian Amoraim. R' Ami invalidates

the stolen lulav without reservation because it is a mitzvah

performed through transgression, Shmuel declares that

the stolen lulav is invalid only on the first day of

Sukkoth, as is written, "and you shall take for yourselves on the first

day", but on the second day (and, or course, all succeeding days of the

festival) it is permissible, just as a borrowed lulav

is permissible. This is to say that the prohibition of a stolen lulav does not derive from a moral defect, but from its failure

to meet the same requirement as a borrowed lulav; on the

first day of the festival one is obliged to shake a lulav

which is his personal property, and a stolen lulav is,

of course, not his personal property. The discussion in the Bavli

is built mainly around Shmuel's dictum. The Babylonian

Amoraim offer different way of solving the "mitzvah

performed through transgression" problem, but continue to accept Shmuel's opinion. Upon deeper thought, we reveal that the halachic midrash

"for yourselves=of your own", which was originally intended to reinforce

the moral proscription, in effect weakens it, for it limits the prohibition to the

first day alone! All the fiery proclamations about defense counsel and prosecutor,

and "mitzvah performed through transgression" are fine as aggadic pronounce-ments, but are of

only secondary importance in halachic decisions.

If we compare the issue of the lulav

to that of the stolen sacrifice, we find that the Yerushalmi

prefers the approach of the prophets, following the path of Malachi. The Bavli, on the other hand, conforms with the words of the Torah

in Emor which disqualify only animals with physical defects

and are indifferent to the moral flaw of a stolen sacrifice. According to this position,

the moral blemish cannot disqualify the ritual act.

The Rambam (Laws of Shofar, Lulav and Sukkah ;8:9) rules according to Shmuel's view:

"All those listed as disqualified because of defects as we explained, or because

of robbery and theft – are [disqualified] on the first day alone; but on the second

festive day as on the remaining days, all are acceptable". The RaAvaD, in his critique, deplores the Rambam's

moral position, and calls for the disqualification of the stolen lulav for the entire festival, as per the ruling in the Yerushalmi. Most commentators on the Talmud and halachic decisors, Rishonim and Acharonim, tended towards

the Bavli's distinctions. The Ritva

writes: "… the obligation of 'of your own' is not a stringency inherent in

the body of the four species, but Scripture was more severe regarding the first

day… therefore we are not to be more stringent in this matter as to apply that

which said

with regard to the first day to all

the other days. But anything which is disqualified because of lack of splendor [hiddur] is unacceptable by the Torah on all days

of Torah." This is to say that a dry lulav is always

disqualified because the defect is in the body of the lulav

itself; a stolen lulav is disqualified only for the first

day, because the defect is not in the body of he lulav

but derives from a special stringency which the Torah commands, and this is in effect

only on the first day. The literature of halachic decisions

is replete with deliberations in this spirit, attempting to refine the parameters

of "mitzvah performed through transgression".

How are we to understand the difference between the approaches

of the Bavli and the Yerushalmi?

Is the Yerushalmi more morally sensitive than the Bavli? On the other hand, it should be remembered that the Bavli presents a much more highly developed system of halachic discourse. The Yerushalmi

recognizes only the basic decision. This makes for great rhetorical power, but,

on the other hand, it is overly simplistic. The Bavli

recognizes more advanced methods of halachic deliberation

which facilitate presentation of a richer and more complex picture. The halachic decisor must possess tools

which enable maximum flexibility, allowing him to tailor his decisions to current


I am not a posek [adjudicator], I have not come to issue rulings, but only to contemplate this

issue against the background of contemporary conditions. Are we to maintain the

fiery ethic of the prophet Malachi and the Talmud Yerushalmi,

or should we raise high the banner of pragmatism born by the Babylonian Torah scholars?

It would seem – especially in the light of our generation's social protest – that

the mitzvah of hiddur, of splendor, lies

primarily in the moral obligation. It should be remembered that "the stolen

lulav" refers not only to the lulav stolen forcibly from another's hands; it refers also –

perhaps primarily – to the lulav which has come into the

merchant's hands through dishonest business practice; the owners or workers did

not receive adequate compensation, the lulav was taken

from private (or even from public) domain without authorization, the children who

sold them in the marketplace were not paid a fair price. Despite all this, the pragmatic

tools of the Babylonian sages can be of value in a given situation, and there is

room for them the posek’s toolbox.

Rabbi Yochanan, author of "mitzvah

performed through transgression", said elsewhere "Why was Jerusalem destroyed? Because

they judged according to Torah law" (Bava Metsia 30b in manuscript versions), and the Gemarrah understands this as meaning that they made do with

Torah law but

did not go beyond the measure of

the law. Does sufficing with "Torah law" fulfill the command given in

our parasha (6:18) "And you shall do that which

is straight and good in the eyes of God"?

Dr. Yonatan Ben-Dov teaches Bible

and History of the Second Commonwealth in Haifa U.



You are to do what is right and

what is good

The Book of Bereishit is called by the

prophets "Sefer HaYashar"

– The Book of the Upright". Explains R' Yochanan:

This is the book of Avraham, Yitzchak, and Yaakov who

were called upright, as is written "Let my soul die the death of

the upright". Jews of the Second Temple

period were tzaddikim, righteous, devoted to Torah

study, but they were not "yesharim"

upright in worldly affairs. Because of groundless hatred, they suspected whoever

feared God in a fashion different from their own of being a Sadducee and a heretic,

and this led to bloodshed and all the evils of the world, until the Temple was destroyed,

for The Holy One, Blessed Be He, is upright and he cannot tolerate this kind

of tzaddikim. [He prefers] only those

who walk in the straight path also in worldly matters, and not crookedly,even though [the

crooked behavior] is for the sake of Heaven, for this leads to the destruction

of creation

and the devastation of civilization.

 (From the Netzsiv of

Volozhin's commentary "Haamek

Davar", Preface to the Book of Bereishit).


After mentioning that one should observe these three categories

of mitzvoth (Mishpatim/regulations,

eidot/testimonies, hukkim/laws)

and not test the Holy One, Blessed Be He, with regard to any of them, He decreed

(according to the midrash) in favor of compromise on matters

on which the Torah did not rule, saying – "You are to do what is right

and what is good". And because it [compromise]

will lead to peace, He called it "What is right and what is good in the

eyes of God"               

 (Rabeinu Bahayey, Devarim 6:17)


It would seem that the admonition which the Torah adds to all

of its laws, You are to do what is right and what is good in the eyes of the

Lord, is superfluous. All of the laws are directed towards that goal, in order

to show man the straight path. However, there are some things which are legally

permissible but which were prohibited solely on the basis of You are to

do what is right… Judaism does not stop at limiting deeds of actual evil –

it also tries to root out potential evil from the human soul. That is why there

are special admonitions that address that which is in our hearts.

 (The "Admor He'Halutz" – R. Yeshayahu Shapira z"l,

as quoted by Nehama Leibowitz)


The Danger of "Idolatry" is Greater for Torah Scholars

…he especially warns Torah scholars who deal with laws and statutes, only be on your guard and guard yourself

well. This makes it clear that the Torah scholar is more likely than other people

to fall into the corruption of idolatry. So it was in reality: As Perek Helek tells us,

Yoravam, Ahav and Menashe were great Torah scholars, and they were the

first to bring idolatrous offerings and made all Israel sin. The author of Lamentations

says, Lord, see my destitution, for

the enemy has grown great (28:59),

and we later explained (28:59) in

the name of the midrash that

the evil inclination has increased hold over Torah scholars, since the Torah scholar

can apply his intelligence to find ways to permit things, twisting the words of

the living God to conform with his own view, confusing people into thinking that

it is a commandment.

 (The NeTziV's Ha'Amek Davar on Devarim 4:14)


That You May Live and Come and Inherit – Inheritance of the Land Is Contingent

Upon Fulfillment of the Covenant

That you should not say "It is already written: To these

shall the land be divided – the land is ours, whether we are deserving or guilty."

Do not say so, for your entry into the land is dependent entirely on whether or

not you observe the laws and regulations.

 (Hizkuni, Devarim 4:1)


There are those who believe that God's love for Israel is promised

unconditionally; they rely on such verses as, Because of God's love for you and

because of his keeping the sworn oath that he swore to your fathers did God take

you out, with a strong hand and redeem you from a house of slavery – The Holy

One, Blessed Be He, is obliged – as it were – to keep his promise and to redeem

us. But such is not the case. As long as there does not exist a generation worthy

and suitable to accept the covenant and the grace, as God swore to the patriarchs,

the Holy One, Blessed Be He, has patience, and a thousand years pass before his

eyes as if it was but yesterday; but on the other hand, it is not at all certain

that we will be able to wait a thousand generations, if we are unworthy thereof.

These words must be declared against that dangerous ideology which contains a tremendous

diminution of religious belief, to the effect that the Jewish people received a

promise of great and glorious Messianic redemption merely by virtue of the fact

that they are the Children of Israel. Those words of blasphemy and execration heard

today from the mouth of many who are assumed in their own eyes to be the loyal and

faithful of Israel,

saying that The Holy One, Blessed Be He is, as it were, obligated to keep his promise

and redeem us; these words may turn out to be misleading and disappointing, because

they are oblivious to the basic condition: Hear, Israel, the laws and the regulations.

 (Y. Leibowitz: Sheva Shanim shel Sihot al Parashat

HaShavua. pp. 776-777)



With heads bowed, we mourn the untimely passing of

Eitan Melchior


Son of Hannah and Rabbi Michael Melchior

Following a severe illness

Our condolences to the grandfather, grandmothers, parents, his wife Shira

And his children, to his brothers and all the Melchior family


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