Hamaayan / The Torah Spring Edited by Shlomo Katz Mishpatim: These Are the Laws! Volume XVIII, No. 18 29 Shevat 5764 February 21, 2004 Sponsored by Bobbi and Jules Meisler in memory of mother Anne Meisler a"h Elaine and Jerry Taragin on the yahrzeits of Mrs. Shirley Taragin a"h and Mr. Irving Rivkin a"h Today's Learning: Parah 7:5-6 O.C. 167:16-18 Daf Yomi (Bavli): Chullin 29 Daf Yomi (Yerushalmi): Ketubot 16 At the end of this week's parashah, the story of Matan Torah / The Giving of the Torah continues. There we read Bnei Yisrael's famous statement, "Na'aseh ve'nishmah" / "We will do and we will listen." R' Yaakov Ettlinger z"l (19th century; author of Aruch La'ner and mentor of R' Samson Raphael Hirsch z"l) observes that twice before in the Torah (Shmot 19:8 and 24:3) Bnei Yisrael responded, "All that Hashem spoke na'aseh/we will do." Why the third time did they add, "ve'nishmah" / "and we will listen"? What does it mean to "listen" to the Torah after "doing" it? The midrash relates that Bnei Yisrael asked of Hashem (Shir Hashirim 8:6), "Place me like a seal on Your heart." Hashem responded (see ibid.), "The heart is sometimes seen and sometimes not seen. I will place you as a seal on My hand, which is always visible." R' Ettlinger explains: Bnei Yisrael asked Hashem to promise that He would accept their service of Him if they devote their thoughts to Him. Hashem responded, "I will do better than that. `The heart is sometimes seen and sometimes not seen.' Sometimes you will understand My mitzvot and devote your hearts to Me, and other times you will not understand. I promise to accept your service when you perform deeds for Me, whether you understand them or not." Doing the mitzvot before "listening" to them means doing them without understanding their reasons. (Obviously they did not mean they would do the mitzvot before hearing about them, for how can that be?) This is the meaning of the halachah that one lays the hand tefilin before the head tefilin, i.e., we bind ourselves to Hashem with our hands (deeds) before our head (mind) is with Him. The first time (19:8) Bnei Yisrael said, "na'aseh," was before they had heard a single mitzvah. In that verse, they merely expressed their desire to receive the Torah. The second time (24:3) was after they had heard the mitzvot, and then they expressed their intention to keep the mitzvot. Only thereafter was it appropriate to add, "ve'nishmah" - we also will attempt to delve into the mitzvot and understand them. (Minchat Ani: Parashat Yitro) ******** "And these are the mishpatim / civil laws that you shall place before them . . ." (21:1) R' Yitzchak Arama z"l (Spain and Italy; c.1420-1494) asks: Why does the Torah need to include mishpatim / civil laws? These are the types of rules that every society promulgates on its own because civilized life is impossible without them, so why should the Torah "bother" with them? Also, why does the Torah include two different types of mitzvot that seem to have the same purpose, i.e., eidot and chukim. [Eidot / mitzvot that "testify" to historical events (e.g., eating matzah, which recalls the Exodus) teach us to subjugate ourselves to G-d, who caused those events to happen. Chukim / mitzvot that seem to have no rational basis also teach us to subjugate ourselves to G-d.] R' Arama writes, "These are awesome questions that any wise person should ask." Indeed, he adds, these are precisely the questions that the Wise Son asks at the Seder (taken from Devarim 6:20): "What are the eidot / testimonies and the chukim / decrees and the mishpatim / ordinances that Hashem, our G-d, commanded you?" What is the answer that we give the Wise Son (and any other person whose wisdom moves him to ask the above questions)? It is (Devarim 6:21-25): You shall say to your child, "We were slaves to Pharaoh in Egypt, and Hashem took us out of Egypt with a strong hand. Hashem placed signs and wonders, great and harmful, against Egypt, against Pharaoh and against his entire household, before our eyes. And He took us out of there in order to bring us, to give us the Land that He swore to our forefathers. Hashem commanded us to perform all these decrees, to fear Hashem, our G-d, for our good, all the days, to give us life, as this very day. And it will be a tzedakah for us if we are careful to perform this entire commandment before Hashem, our G-d, as He commanded us." R' Arama explains: The eidot testify to all of the kindnesses that Hashem performs for us, thus obligating us to serve Him. In particular, they testify that "we were slaves to Pharaoh in Egypt, and Hashem took us out of Egypt with a strong hand." They also testify that "Hashem placed signs and wonders, great and harmful, against Egypt, against Pharaoh and against his entire household, before our eyes." Finally, they testify that "He took us out of there in order to bring us, to give us the Land that He swore to our forefathers." The chukim also teach us to subjugate ourselves to G-d, but they have an additional purpose. "Hashem commanded us to perform all these decrees, to fear Hashem, our G-d, for our good, all the days, to give us life, as this very day." All mitzvot are chukim / decrees in the sense that we do not see how they are for our own good. This aspect of the mitzvot in general, and of chukim in particular, teaches us that G-d rewards us for obeying Him, both in this world - "all the days" - and in the World-to-Come - "to give us life." Finally, there are mishpatim, the rational civil laws. "And it will be a tzedakah for us if we are careful to perform this entire commandment before Hashem, our G-d, as He commanded us." It's true that we would have enacted such laws on our own if G-d had not given them to us, but he did tzedakah / charity for us by commanding us to observe these laws. Because they are mitzvot and not just laws, He rewards us for doing what we would have done anyway. (Akeidat Yitzchak, sha'ar 38) R' Moshe ben Chaviv z"l (died 1696) offers another answer to the question posed by R' Arama: Why does the Torah need to include mishpatim, since they are the types of rules that every society promulgates on its own? We read in Tehilim (19:10), "The mishpatim of Hashem are true - together righteous." What does this mean? When a society enacts ordinances, it is impossible for every law to be logically consistent with every other law. Not so Hashem's laws; they are righteous, not only each in its own right, but also "together righteous." (Derashot Maharam Chaviv) R' Yoel Teitelbaum z"l (the Satmar Rav) once observed: This parashah is the first one after the giving of the Torah, and it consists primarily of ordinances dealing with business relationships and torts. These are the laws that are dealt with in the fourth division of the Shulchan Aruch, known as "Choshen Mishpat." The question may be asked: If Hashem saw fit to teach these laws before most of the other commandments, why did the author of the Shulchan Aruch place these laws in the last section of his work? The answer, R' Teitelbaum explained, is that Choshen Mishpat had to come last because of one law that it contains. Specifically, we learn in Chapter 12 of Choshen Mishpat: "It is a mitzvah to ask the litigants before beginning to judge whether they will accept a pesharah / compromise, and every court that makes compromises between litigants is praiseworthy." Had Choshen Mishpat taken its rightful place at the beginning of the Shulchan Aruch, one might mistakenly conclude that it is a mitzvah to compromise in all of the areas of halachah that would have followed in the other divisions of the Shulchan Aruch. However, that certainly is not the case! Therefore, Choshen Mishpat with its preference for compromise had to be pushed to the end. (Quoted in Otzrotaihem Shel Tzaddikim) R' Yaakov ben Asher z"l (14th century) writes that the halachah mentioned above is alluded to in our verse. Specifically, the Hebrew word "mishpatim" is an acronym of: "Mitzvah Sh'ya'aseh Pesharah Terrem Ya'aseh Mishpat" / "It is a mitzvah to make a pesharah / compromise before rendering judgment." (Ba'al Ha'Turim) ******** R' Shmuel ben Eli z"l R' Shmuel ben Eli was among the greatest Babylonian roshei yeshiva in the medieval period. His father, R' Eli Halevi, a descendant of the prophet Shmuel, was one of the early deans of the "Gaon Yaakov" academy in Baghdad. This yeshiva was an attempt to revive the ancient academies of Sura and Pumpedita, where the sages of the gemara had studied and taught. In 1164, R' Shmuel became the rosh yeshiva there. Under R' Shmuel, the yeshiva flourished. At times, two thousand students attended his lectures. In all of Iraq, Syria and Persia, no dayan / rabbinical judge was appointed without the permission of R' Shmuel, and his rulings were accepted in Eretz Yisrael also. In one matter, R' Shmuel's opinion was not accepted by his contemporaries. In 1190, R' Shmuel moved to abolish the office of the Reish Galuta / Exilarch, the political head of Babylonian Jewry. R' Shmuel asserted that because the rabbis should be supreme in Torah matters and the Persian king was supreme in secular matters, maintaining the Reish Galuta was an unnecessary drain on communal finances. For its part, the general population refused to reject this last vestige of the Davidic dynasty, from which the Reish Galuta was descended. (This Reish Galuta had been appointed by Rambam, who later regretted becoming involved in the politics of a distant community.) R' Shmuel is also known as a disputant of his contemporary, Rambam, on issues of both halachah and hashkafah / "Jewish thought." He was opposed to Rambam's Moreh Nevochim / Guide to the Perplexed and Rambam's "Letter to Yemen" (which deals with certain aspects of techiyat ha'meitim / resurrection of the dead). R' Shmuel's halachic opinions are quoted by contemporary and recent poskim such as R' Ovadiah Yosef and R' Avraham Yitzchak Hakohen Kook, as well as by ancient and medieval poskim. R' Shmuel died in 1195. (Sources: The Artscroll Rishonim, p. 78; Iggeret Ha'Rambam Le'Rav Yosef, pp. 130- 133; She'eilot U'teshuvot Ha'Rid, No. 22; She'eilot U'teshuvot Maharam Al'Shakar No. 117; She'eilot U'teshuvot Mahari Ben Lev Vol. III, No. 73; She'eilot U'teshuvot Orach Mishpat No. 56; She'eilot U'teshuvot Yabia Omer, Vol. VI, Even Ha'ezer No. 14)