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SALT 2018 - Parashat Devarim

Rav David Silverberg
Motzaei Shabbat
            In Parashat Devarim, Moshe recalls the time when, many years earlier, he found himself unable to personally tend to all the people’s civil disputes, and he cried in exasperation, “How can I bear alone your troubles, your burdens and your quarrels!” (1:12). 
            Rashi, commenting on this verse, explains (based on the Sifrei) that Moshe here not only speaks generally of the great burden of responsibility that he bore on his shoulders, but also sharply criticizes the people for the hardship they imposed upon him.  For example, when a litigant saw that his opponent was presenting a more compelling case, he would summon more witnesses and try to produce more evidence, thereby prolonging the process.  When the people saw Moshe leave his tent early, they began suspecting that there were tensions between him and wife, but when he left late, they suspected him of devising devious schemes to take advantage of them.  Later, commenting on Moshe’s account of the people’s enthusiastic consent to his decision to appoint a team of judges (1:14), Rashi explains that Moshe criticized the people for jubilantly welcoming the new system.  They celebrated the appointment of lower-level judges, anticipating the possibility of offering the new judges bribes – a possibility that did not exist when Moshe presided over all the cases.  The people were so enthusiastic about the new system, Rashi adds, that they pressured Moshe to expedite the appointment process so the new judges could begin their work immediately.
            Rashi’s comments to these verses become particularly striking in light of his comments to the very next verse (1:15), where he elaborates on Moshe’s account of his appointment of the new judges.  Moshe recalls that he “took” the selected judges, and Rashi explains: “I drew them with words: ‘Fortunate are you!  Over whom are you coming to be appointed – over the children of Avraham, Yitzchak and Yaakov, over people who are called ‘brothers’ and ‘friends’ [of the Almighty]!’”  Although Moshe was prompted to appoint judges because of the people’s endless disputes and arguments, and the people shamefully welcomed the decision as an opportunity to win favor through bribery – he was still able to recognize the greatness of Am Yisrael and the great privilege of serving them.  True, they had plenty of faults, and too many of them were petty and dishonest, problems that Moshe sought to address with the help of a large team of talented, intelligent and honest judges.  But even so, Moshe retained a positive outlook.  Even as he looked with frustration and disappointment at Benei Yisrael’s failings, he did not view them with disdain.  He continued to respect them and cherish them, recognizing that despite their serious flaws, they were still God’s beloved children who were worthy of his admiration and love.
            Legitimate criticisms about people’s behavior do not require outright contempt.  We can strongly disapprove of people’s views, statements and conduct while still respecting and cherishing them.  Moshe here harshly criticizes Benei Yisrael for their grave misconduct, but at the same time emphasizes the great privilege he had to lead such a nation.  He thereby sets for us a crucial example of showing respect and love even to those in whom we find fault, and to never allow legitimate criticism to blind us to people’s admirable qualities.
            In Yeshayahu’s famous prophecy which is read as the haftara for Parashat Devarim, the prophet describes God’s rejection of the people’s sacrifices on account of their wrongdoing, and then cries, “Cleanse, be purified, remove your evil deeds from my view; cease wrongdoing!” (Yeshayahu 1:16). 
            Rav Yechezkel Shraga Halberstam of Shinova, in Divrei Yechezkel, suggests that the prophet here calls for more than ordinary repentance.  The phrase “chidlu harei’a,” the Divrei Yechezkel writes, should be understood to mean, “Stop others from wrongdoing.”  According to this reading, Yeshayahu implores the people to not merely change their conduct and discontinue their sinful practices, but to “cleanse” themselves to the point where they naturally exert positive influence and inspire others to improve.  The Divrei Yechezkel cites one of his mentors, Rav Hersh of Rimanov, as explaining in a similar vein a passage from the popular “Ki Eshmera Shabbat” hymn customarily song on Shabbat: “…akhabes bo libi ke-vorit” – “I shall launder my heart on [Shabbat] like soap.”  Rav Hersh noted that this passage speaks of cleansing our hearts not “with” soap, but rather “like” soap.  The explanation, Rav Hersh claimed, is that we must strive on Shabbat to reach the level where we resemble soap in the sense that we naturally have a positive, “cleansing” effect upon the people around us.  Similarly, the Rebbe of Shinova writes, Yeshayahu bids the people to not just improve, but to become the kind of people who inspire others to improve.
            Yeshayahu in this prophecy speaks to a generation that enthusiastically offered sacrifices and recited prayers, but were morally corrupt.  Yeshayahu describes the people as offering “rov zivcheikhem” – an abundance of sacrifices (1:11), but with hands “filled with blood” (1:15).  He indicates that the justice system was dysfunctional and failed to protect the downtrodden (1:17), and he laments the murder (1:21) and rampant counterfeiting of money and merchandise (1:22), among other crimes.  Off this background, the insight of the Shinover Rebbe perhaps becomes especially poignant.  If we passionately involve ourselves in religious practices but ignore basic ethical norms, we cause people to look upon religion with revulsion.  If we are fervently devoted to “sacrifices,” to the ritualistic elements of religion, but we ignore the interpersonal code that it demands we follow, then we naturally turn people away.  It is only when we are as passionately kind, generous, sensitive and honest as we are devoted to ritual that we positively influence other people, and serve as inspiring models of the kind of pristine qualities that ought to characterize Torah life.
            In Parashat Devarim, Moshe recalls his appointment of judges to assist him in settling the people’s civil disputes, and he tells of the series of instructions he communicated to the new appointees at that time.  One of these commands was, “Lo taguru mipenei ish” – “Do not fear any man” (1:17).  The Sifrei interprets this command to mean that even if a judge fears that a litigant might cause damage to his property or person if he rules against him, the judge may nevertheless not recuse himself, and must preside over the case and reach a true, honest verdict.
            Chatam Sofer suggests a deeper level of interpretation to this verse, one which has important implications beyond the narrow context of judges.  The word “ish” (“man”), Chatam Sofer writes, could be interpreted to mean “humanness.”  The judges were told not only that they should not fear other people, but also that they should not fear their own human fallibility and limited intelligence.  A judge might understandably feel that as an “ish,” a flawed human being, he is prone to errors and oversights, and is therefore likely to reach faulty conclusions on various occasions over the course of his career.  The prospect of mistakenly ruling in favor of the guilty party and against the innocent party could easily intimidate a qualified judge from accepting thus huge responsibility.  Moshe therefore warned the judges, “Lo taguru mipenei ish” – that they should not feel discouraged or intimidated by their flaws and limitations.  The role of a judge is to reach the most accurate decision he can based on the evidence presented to him and the dictates of Halakha.  If he commits himself to this goal, then he does his job satisfactorily, even if he occasionally errs.
            The fear of failure prevents many of us from pursuing dreams which we are, in truth, fully capable of realizing.  We are too often afraid of our “ish,” our imperfections and flaws, knowing that we are bound to err on occasion, and we feel that the likelihood of mishaps makes us unsuitable for a mission that we can, in fact, accomplish adequately, albeit not flawlessly.  Chatam Sofer here teaches us of the need to overcome this innate fear of our own “ish,” to realize that success does not require perfection, that occasional mistakes, failures and setbacks are all part of the long, complex process of achievement.  We should not be afraid of ourselves, and should instead recognize our abilities despite their limitations, and make a firm commitment to utilize them to achieve the most we are capable of achieving.
            Moshe in Parashat Devarim recalls the decision he made many years earlier to appoint “wise, intelligent men, well-known to your tribes” (1:13) as judges to serve alongside him.  Rashi, commenting on the word “anashim” (“men”), explains (based on the Sifrei) that this term refers to “tzadikim kesufim” – people who were righteous and “kesufim” – an ambiguous term that is difficult to translate.
            The Taz, in his Divrei David, suggests that this word is associated with the verb kh.s.f. which means “yearn” or “long.”  For example, Lavan speaks of Yaakov leaving Charan “ki nikhsof nikhsafta le-veit avikha” – “because you longed for your father’s home” (Bereishit 31:30).  Accordingly, the Taz explains, the word “kesufim” used by Rashi refers to pleasant, amicable individuals whom others enjoy being with and whose company and friendship they desire.
            Chatam Sofer also associated “kesufim” with the verb for “longing,” but suggests that it speaks of a person with a thirst for knowledge.  At this early stage, before Moshe taught Benei Yisrael the Torah, he did not expect to find scholars with large amounts of knowledge.  But what he did demand, Chatam Sofer explains, is that the chosen judges were “kesufim” – people who genuinely desired knowledge and passionately sought to learn and understand more.  This is the kind of scholar that Moshe wanted for the role of judging the people.
            Others associate the word “kesufim” with the Aramaic root kh.s.f., which denotes shame and humiliation.  Some suggested that Rashi refers here to the quality extolled by the Gemara (Yoma 23a) of “ne’elavin ve-einan olvin” – enduring humiliation without insulting in response.  Moshe sought leaders who were not only wise, but also mature and thick-skinned, capable of hearing people shame and humiliate them without feeling the need to strike back with insults of their own. 
Others suggested that Moshe speaks here of scholars who are prepared to “shame” and lower themselves to learn and gain knowledge and insight from anybody, even those with less proficiency and expertise than them.  In the spirit of the Mishna’s timeless adage, “Who is wise – he who learns from all people” (Avot 4:1), Moshe felt it important to appoint judges who were scholarly but humble enough to respectfully listen to and learn from all people.  A genuine, honest scholar is the one who eagerly pursues knowledge and understanding from any source, and recognizes that all people, including those with less scholarly training, have what to teach and can be a valuable source of knowledge and insight.
            Amidst Moshe’s account in Parashat Devarim of his appointment of judges to help resolve the large number of conflicts among the nation, he notes the people’s enthusiastic approval of this decision to have others besides him serve as judges: “You replied and said: The thing that you said to do is good” (1:14).  Rashi, citing the Sifrei, comments that Moshe added this sentence as subtle criticism of the people: “You should have responded: Our teacher, Moshe!  From whom is it proper to learn – from you, or from your disciples?  Not from you, who took great pain over it?”  The people did not react this way, Rashi explains, because they saw the appointment of lower-level judges as an opportunity to win their cases through bribery and manipulation.
            Significantly, Rashi speaks of Moshe as the ideal teacher and judge not because of his superior intellect, and not because of his having received the Torah directly from God, but because “nitzta’arta aleha” – he exerted immense effort and endured “pain” in the pursuit of knowledge.  We might have assumed that Moshe became the greatest scholar, prophet and leader in world history through his natural talents, without having to struggle or exert effort to learn the Torah and draw close to God.  But Rashi here teaches us that this is not the case at all.  Moshe became the great teacher he was precisely because he struggled, because success did not come easily or naturally, and he needed to invest a great deal of effort into the process of acquiring Torah knowledge. 
As many have noted, Rashi here instructs that the ideal teacher and mentor is not the one who knows the most, to whom scholarship and achievement came easily, but to the contrary, the one who needed to struggle and work hard to accomplish.  Such a teacher understands the challenge of absorbing new material, of assimilating information, of learning a new field, and of gaining expertise.  Teachers who have themselves struggled and worked hard are more inclined to be patient and to present the material in a clear, accessible fashion, recognizing the hardship that accompanies the learning process.
            Rashi’s comments also remind us that there is no shame in struggle.  Enduring “tza’ar” (“pain”) along the process of intellectual and spiritual growth is something which even Moshe Rabbeinu experienced.  This process is not meant to be easy or simple.  If we find learning and growth difficult, and if we find ourselves occasionally failing and making mistakes, we should not feel discouraged, but should instead recognize these setbacks as inevitable stages of the lifelong process of growth, a process in which we must persist despite the struggles and obstacles we will necessarily confront along the way.
            Among the instructions that Moshe presented to his newly-appointed judges, as we read in Parashat Devarim (1:17), is the warning, “Lo takiru panim ba-mishpat.”  The simple meaning of this command, it would seem, as Rav Saadia Gaon and Ibn Ezra explain, is that judges are forbidden from showing favoritism, entering a case with a positive predisposition towards one litigant because of that litigant’s stature or relationship to the judge.  Rashi, citing the Sifrei, explains differently, writing that Moshe here speaks not to the judges themselves but rather to the officials who would be in charge of appointing judges, warning them to appoint judges based strictly on credentials, and not based on factors such as external appearance or a personal relationship.
            A different explanation of this verse is offered by Rav Azaraya Figo, in Bina Le’itim (vol. 2, Derush 58), where he writes that this command requires the judge to reach conclusions based on a litigant’s words, not his appearance or facial expressions.  A perceptive judge might feel that he can determine a party’s innocence or guilt by taking note of body language or other signals.  But while these indications may have significance, the Torah instructs judges not to rule on this basis, but to instead, as the verse continues, “listen to both young and old” – to listen carefully and attentively to the litigants’ claims, without rushing to conclusions based on their outward appearance.  It has been suggested that this is also the intent of Moshe’s very first instruction to the newly-appointed judges: “Shamoa bein acheikhem” (1:16) – to listen to the litigants.  The point being made is that a judge should not rashly arrive at a conclusion based on his immediate impressions, but must instead carefully and attentively listen to the claims and arguments of both parties.
            The underlying message of this command applies to all the “judgments” we make about other people, and not only to courtroom judges.  We are warned to avoid reaching definitive conclusions about people based on our first impressions.  Even if we feel we are keen and perceptive, we must reserve judgment and not rashly determine what a person is like before truly getting to know him or her.  Just as courtroom judges are commanded to patiently and attentively listen to a litigant’s arguments before reaching his conclusions, we, too, must realize the limits of our perception and our instincts, and humbly acknowledge that we cannot fully assess people until we have taken the time to speak to them and hear what they have to say.  Rather than judging people impulsively, we are to give them the benefit of the doubt and recognize that our first impressions are not necessarily accurate.
            The Gemara in Masekhet Megilla (5b) cites Rabbi Elazar as relating that Rabbi Yehuda Ha-nasi once proposed that the observance of Tisha B’Av should be “uprooted,” but his colleagues overruled him.  Rabbi Abba corrected Rabbi Elazar, noting that his account was imprecise.  What actually happened was that one year the 9th of Av fell on Shabbat, when the Tisha B’Av fast cannot be observed, and so Rabbi Yehuda Ha-nasi proposed simply “uprooting” the observance that year.  If it could not be observed on its actual date, he figured, then it should not be observed at all.  The other sages disagreed, and maintained that in such a case, the Tisha B’Av fast is observed the next day, on Sunday, the 10th of Av, which is, of course, the accepted practice.
            Tosefot, commenting on this exchange, suggest that even according to the initial account, Rabbi Yehuda Ha-nasi did not actually intend to abolish the Tisha B’Av observance altogether.  Rabbi Elazar meant that Rabbi Yehuda sought to move the Tisha B’Av observance from the 9th of Av to the 10th of Av.  As the Gemara tells elsewhere (Ta’anit 29a), the Beit Ha-mikdash was set ablaze just before sundown on the 9th of Av, and it burned over the course of that night and most of the following day, such that the destruction actually occurred primarily on the 10th, not the 9th.  For this reason, the Gemara relates, Rabbi Yochanan remarked that had he been the one to establish a day of fasting and mourning for the Beit Ha-mikdash, he would have chosen the 10th of Av, not the 9th.  Tosefot thus claim that this was Rabbi Yehuda Ha-nasi’s intent, too, when – according to the initial account – he proposed “uprooting” Tisha B’Av.  Namely, he sought to move the observance to the 10th of Av, when the Mikdash actually burned.  His colleagues overruled him, because, as the Gemara (in Ta’anit) comments, we observe the day of mourning on the day when the destruction began, meaning, the day when Temple was set ablaze.
            It emerges, then, that we have two conflicting accounts as to what Rabbi Yehuda proposed.  According to the first account, he proposed moving Tisha B’Av from the 9th of Av to the 10th of Av, whereas according to the second, he proposed suspending the Tisha B’Av observance in years when the 9th of Av falls on Shabbat.
            Chatam Sofer (cited by his son, in Ketav Sofer, O.C. 101) explained that these two accounts reflect fundamentally different perspectives on the designation of Tisha B’Av as the day of mourning for the Beit Ha-mikdash.  According to the first account, the more appropriate day of mourning is actually the 10th of Av, whereas according to the second, the more appropriate day is the 9th.  The idea to cancel, rather than delay, the Tisha B’Av observance when the 9th of Av falls on Shabbat reflects the perspective that the fast can only be observed on the 9th, as this is this the appropriate day of mourning.  Thus, the second account of Rabbi Yehuda’s proposal reflects the opposite perspective than the first, according to which Rabbi Yehuda wanted to establish the 10th of Av as the day of mourning for the Beit Ha-mikdash.
            Chatam Sofer’s analysis touches upon a fundamental question that many Acharonim have discussed concerning the observance of Tisha B’Av on Sunday when the 9th of Av falls on Shabbat.  Namely, is the observance on Sunday merely a “make-up” of the observance that was missed the previous day, or is the 10th of Av considered the actual date of Tisha B’Av in such a case?  Chatam Sofer seems to indicate that the observance can be moved to Sunday only because the Temple burned on the 10th of Av, such that the 10th of Av in its own right qualifies as a day of mourning.  If so, then we must seemingly view the observance of the 10th of Av in such a year not as a “make-up” of the fast that could not be observed at its proper time, but rather as the primary date for the observance.  This perspective sees the 10th of Av as inherently the appropriate day of mourning, even if in practice we generally observe the fast the day before because that is when the Temple was actually set on fire.  And thus in a year when the fast cannot be observed on the 9th of Av, the 10th of Av is designated as the day of fasting and mourning.
            This question could affect several practical halakhic issues, including the question regarding a boy who becomes a bar-mitzva (or a girl who becomes a bat-mitzva) on Sunday, the 10th of Av.  Is the boy halakhically required to fast that day?  (We speak here on the level of strict halakhic obligation; of course, it is in any event generally customary for youngsters to observe the fasts during the year before they become a halakhic adult.)  If we view the observance on the 10th of Av as merely a “make-up” of the fast that was missed the day before, then this young man bears no obligation to fast, despite being a halakhic adult, since he was not a halakhic adult on the previous day, when the obligation set in.  If, however, we view the 10th of Av as the actual date of Tisha B’Av when the 9th of Av falls on Shabbat, then it stands to reason that this boy would be required to fast, since he is considered an adult on that day.  Indeed, Rav Malkiel Tannenbaum of Lomza, in his Divrei Malkiel (5:130), ruled that the boy must observe the fast in such a case, since the 10th of Av is the actual day of Tisha B’Av in such a case, and the fast is not observed merely to make up the fast that was missed the previous day.

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