TOPICS IN HALAKHA

 

 

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(Part 1 of 2)

 

I

 

            In the aftermath of Korach's rebellion, Elazar the priest is commanded to take the censers of the two hundred and fifty men that offered the incense, and make them into beaten plates for a covering of the altar, so that they may serve as a memorial for the children of Israel:

 

That no stranger, who is not of the seed of Aharon, come near to offer incense before the Lord; that he be not like Korach and his company, as the Lord said to him by the hand of Moshe. (Bemidbar 17:5)

 

            According to the plain sense of the passage, this verse comes to prohibit a non-priest from drawing near to offer incense, as did Korach and his company.

 

The closing words of the verse, "as the Lord said to him by the hand of Moshe," refer back to Aharon and the priesthood and should be understood as follows: As the Lord said to Moshe with regard to him, that only Aharon and his sons should serve as priests, to the exclusion of strangers who are not priests (Rashi, Ibn Ezra).[1]

 

            Rashi, however, understands the phrase, "that he be not like Korach and his company," not as a continuation of the prohibition, but as an explanation of the reason. A stranger should not draw near, in order that what happened to Korach and his company should not happen to him. We are not dealing here with an abstract prohibition, but with a concrete symbol, which serves to remind us what happened to strangers who drew near to offer incense.

 

II

 

            According to Chazal, however, the verse comes to warn against contentious dispute in general. The Gemara in Sanhedrin 110a states:

 

"And Moshe rose up and went in to Datan and Aviram." Resh Lakish said: This teaches that one must not be obdurate in a quarrel. Rav said: He who is unyielding in a dispute violates a negative command, as it is written: "That he be not like Korach and his company." Rav Ashi said: He deserves to be smitten with leprosy: here it is written: "[As the Lord said] to him by the hand of Moshe," and elsewhere it is written: "And the Lord said furthermore to him: Put now your hand into your bosom… [and when he took it out, behold, his hand was leprous as snow]."

 

            Thus the Sages have shifted what is stated here from its localized context, i.e., dispute over the priesthood, to the context of contention in general.

 

            One who considers the various viewpoints cited in the Gemara will see a gradation from the relatively mild censure to the more stringent. Resh Lakish understands that one must not be obdurate in a quarrel, but he doesn't define contention as the violation of a prohibition. Rav adds that one who is unyielding in dispute violates a negative command. And Rav Ashi is even more stringent, adding that such a person deserves to be smitten with leprosy. {It should be noted that this gradation does not work according to the reading "for Rav said," according to which there are only two views.[2])

 

            The Rif and the Rosh bring the words of Rav and Rav Ashi as normative law, but do not mention Resh Lakish's dictum. They may have understood that Resh Lakish's position is included in what the others say. Or else they understood that nothing can be derived from Moshe, for he may have related to Datan and Aviram in a way that goes beyond strict law, and therefore we need a different source for the prohibition against contentious dispute, such as those proposed by Rav and Rav Ashi.

 

III

 

            Is this prohibition against contentious dispute actually counted as a real prohibition? The Rishonim disagree on the matter. The Meiri implies that this is not a real prohibition, not even by Rabbinic decree, but merely conduct that should be avoided:

 

Even though dispute in general is something hated and abhorred, and by way of exaggeration they said that it was subject to a prohibition, as it is stated: "That he be not like Korach" - nevertheless when a person contends against his teacher or against someone whose authority he should accept, he is especially hated. This is what they said: "Whoever contends against the kingdom of the house of David deserves to be bitten by a snake."[3]

 

            What is the source for the Meiri's position that Rav's statement was made by way of exaggeration? It seems that he learned this from the Rambam. The Rambam in his discussion of the prohibition of "Lo titgodedu" in his Sefer ha-Mitzvot (negative precept, no. 65) explains that according to its plain sense this is a prohibition against gashing one's flesh for the dead or in the manner of idol worshippers. The Rambam then adds:

 

[The Sages] have said that included in this prohibition is a prohibition for the courts in a town to be divided in their practice… And they said: "Lo titgodedu" – you shall not separate into various different groupings."

 

            But the Rambam emphasizes:

 

The verse itself is [to be understood] as we have explained… And this is like a midrashic exposition.

 

            Thus the Rambam distinguishes between a prohibition that emerges from the plain sense of the biblical text and one that is derived by way of midrashic exposition. The Rambam then adds:

 

And similarly they said: He who is unyielding in a dispute violates a negative command, as it is written: "That he be not like Korach and his company." This too is by way of midrashic exposition, but the verse itself comes to instill fear. And according to what the Sages have explained this is a negation, rather than a prohibition. For they have explained that this statement means that God (blessed be He) is saying that one who contends against the priests and challenges the priesthood will not be punished in the way that Korach was punished, and his punishment will not be that he will be swallowed up by the earth. Rather his punishment will be "as the Lord said to him by the hand of Moshe," that is to say, leprosy.

 

It stands to reason that according to the Rambam there is a connection between "separating into different groupings" and the prohibition against contentious dispute. But there is a sharp difference between the plain sense of the verse, i.e., a threat of leprosy against those who challenge the priesthood, and the words of the Rabbis learned by way of midrashic exposition, that one who is unyielding in a dispute violates a negative command.

 

            It turns out then that according to the Rambam as well, the prohibition of engaging in contentious dispute is not defined as a negative precept, and indeed it is not mentioned as such either in his Sefer ha-Mitzvot or in his Mishneh Torah.

 

IV

 

            Why did the Rambam not accept the rabbinic statement, "He who is unyielding in a dispute violates a negative command," in its plain sense? The answer seems to be that it does not accord with the plain sense of the text, but rather it is derived by way of midrashic exposition. But there is a difficulty, for the Rambam likens this matter to what the Rabbis said about "Lo titgodedu," and the Rambam accepted that as a Torah prohibition. For he rules in Hilkhot Avoda Zara (12:12-14):

 

A person who gouges himself for the dead is lashed… Gashing and gouging oneself are [governed by] a single [prohibition]… This is also forbidden by the Torah, as it is stated: "Do not mutilate yourselves" (Lo titgodedu)… This commandment also includes [a prohibition] against there being two courts which follow different customs in a single city, since this can cause great strife. [Because of the similarity in the Hebrew roots,] the prohibition against gashing ourselves [can be interpreted] to mean: "Do not separate into various different groupings."

 

            It is so clear that the prohibition against separating into different groupings follows from what is written in the text that the Kesef Mishneh asks: Why is one who gashes himself deserving of lashes? Surely the prohibition of "Lo titgodedu" is a prohibition containing several particular prohibitions (lav she-bi-kelalot), as it includes the prohibition against separating into different groupings, and for such a prohibition punishment is not administered by an earthly court! Note that the underlying assumption of the Kesef Mishneh’s question is that the prohibition against separating into various courts is a fundamental aspect of the prohibition.

 

            If we compare the two prohibitions – separating into different groupings and being unyielding in dispute – it seems that the former is further from the plain sense of the biblical text than is the latter. Why then is the former counted as a negative precept, whereas the latter is not?

 

            The Rambam answers this question in the eighth principle in his Sefer ha-Mitzvot, according to which "it is not fitting to count a negation as a prohibition." Thus he distinguishes between a negative statement or description that uses the word "lo" and a command that prohibits.

 

            Among the examples discussed there is our very verse:

 

And similarly that which it says "that he be not like Korach and his company" is a negation. And the Sages have explained that this is a negation. And they explained the matter saying that He has told us that whoever contends against the priesthood and challenges it will not be punished as was Korach and his company with being swallowed up and burned, but rather his punishment will be “as the Lord said to him by the hand of Moshe.” That is to say: leprosy… And even though we find a different position in the Gemara, that is to say: "He who is unyielding in a dispute violates a negative command, as it is written: 'That he be not like Korach and his company,'" this is just mere support, not that the plain sense of the text means this.

 

            Contentious dispute is, however, subject to a prohibition:

 

However, the prohibition regarding this matter is included in a different negative precept, as I shall explain in its place.

 

            The reference here seems to be the prohibition of "Lo titgodedu," the "lo" in which is understood as denoting a command and prohibition. The prohibition of "Lo titgodedu," in the sense of separating into different groupings, seems to be a preventive prohibition: the community must not separate into different groups, for otherwise they may come to contention.

 

V

 

            The Rambam's clarification seems to have been directed at another viewpoint among those who counted the commandments, i.e., that of the Halakhot Gedolot. The Halakhot Gedolot in his count of the mitzvot (no. 166) counts "That he be not like Korach" as a negative precept.

 

            The Ramban, in his critique of the Rambam's Sefer ha-Mitzvot (eighth principle), comes out, as he generally does, in defense of the Halakhot Gedolot. The Ramban notes that what the Rambam thinks is the plain sense of the text is in fact not the plain sense, and not even the primary midrashic understanding.[4] In any event, it follows from the Ramban that contention is subject to a Torah prohibition, but the prohibition is limited exclusively to contention about the priesthood. One is forbidden to challenge the priesthood in the way that Korach did. The difference between contention against the priesthood and ordinary contention is that the rules regarding the priesthood are clear-cut in the Torah. The Sages later came and expanded the prohibition beyond the realm of the priesthood.

 

            According to this, the prohibition against contention fits in with the other commandments found in that section of the Torah, all of which are related to the priesthood. It even serves as an introduction to the other precepts: first, the prohibition against challenging the priesthood, and afterwards, the priestly gifts and the other precepts.

 

            This indeed is the way the matter was understood by the Targum Yonatan, who identified two prohibitions in the verse: 1) That no stranger come near to offer incense; and 2) That a person not challenge the matter of the priesthood as did Korach and his company.

 

(Translated by David Strauss)

 

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