בראשית

In the Beginning [of]…

The very first word of the Torah presents us with an intriguing challenge. The word be-reishit is in the construct state, meaning it should be followed by a noun to complete its meaning (i.e., at the beginning of [something]). However, the verse continues with the verb bara (created) instead of a noun, which raises the question: in the beginning of what? Various attempts have been made to parse the verse with radically different implications as to its meaning.

Rashi and Ibn Ezra - be-reshit is construct

Rashi argues that we should not read the first verse as an independent statement as traditionally thought. Instead, it should be understood as part of a subordinate clause which finds its completion only in verse 3 when God speaks. The NJPS which agrees with Rashi’s understanding, translates as follows:

“When God began to create heaven and earth - the earth being unformed and void, with darkness over the surface of the deep and a wind from God sweeping over the water - God said let there be light”

Artscroll which, as a matter of principle follows Rashi, translates as follows to similar effect:

"In the beginning of God's creation of the heavens and the earth, when the earth was in a stage of tohu va-vohu with darkness over the surface of the deep, and the spirit of God was hovering over the waters, God said let there be light"[1]

According to Rashi the words prior to ‘God said let there be light’ describe the prehistoric state of the universe but do not provide any information about its origins. God’s creation of heaven and earth as mentioned in verse 1 refers to the formation of the world as we know it but not the creation of basic matter. The question of how we arrived at the stage of chaos described in verse 2 is not addressed - at least not here.[2]

The Ibn Ezra has a similar approach only he says the subordinate clause finishes at the end of verse 1, with verse 2 being the primary clause. Verse 3 (“God said let there be light”) then opens a new statement. The translation would therefore run as follows:

“In the beginning of the creation of the heavens and the earth, the earth was formless and void, and darkness was upon the face of the deep, and the Spirit of God was hovering over the waters. And God said let there be light”

Despite their similarity, the significance Rashi and Ibn Ezra attach to their explanations seems markedly different. For Rashi, the only relevant point is that documenting the sequence of creation and indeed the origins of the universe is not the function of the verse. Verse 1 is a temporal reference which is of relative significance only. The Torah does not commence by informing us that God created the world, only that when he formed the world as we know it this was the state of the universe and this was the process. Time is already underway and matter already exists when the creation story begins in Chapter 1. As Rashi notes: “the Bible is not telling us what came first and what came later”.

In some respects this is even more pronounced in the Rashbam’s commentary. He addresses the grammatical issue in a similar manner to Rashi but understands the verse to mean: ‘at the start of the history (i.e. early history) of the heavens and the earth…’. According to the Rashbam the existence of a ‘heaven and earth’ is presupposed when the creation story commences.[3]

For Ibn Ezra, on the other hand, the Torah does not allude to any creation ex-nihilo prior to the chaos in verse 2 for the reason that there was none![4] Presumably influenced by the Aristotelian doctrine of the eternity of matter, the Ibn Ezra seems to suggest that the Torah is confirming that primal matter is timeless and co-exists with God.[5]

On a grammatical level, however, these readings present new problems. If verse 2 is a dependent clause (like Rashi) or completion of verse 1 (like Ibn Ezra), then it should have said va-tehi ha-aretz with a consecutive vav which would better maintain the narrative flow, rather than the perfect tense.[6]

Furthermore, argues R David Zvi Hoffman, if what is being described is the beginning of a process (i.e. beginning of God’s creation of heaven and earth…) then the word techilat would have been more appropriate than reishit. As an example he compares the following verses:

וַהֲבֵאתֶם אֶת עֹמֶר רֵאשִׁית קְצִירְכֶם אֶל הַכֹּהֵן (ויקרא כ״ג:י׳)

וְהֵמָּה בָּאוּ בֵּית לֶחֶם בִּתְחִלַּת קְצִיר שְׂעֹרִים (רות א׳:כ״ב)

The first instance refers to the first product of the harvest whereas the second instance refers to the beginning of the harvesting (i.e. first stage of a process). Thus, in our case, if we parse the verse according to Rashi and Ibn Ezra, since the verse intends to reference the commencement of the process of creation, the word techilat would have been more appropriate.

Rashbam raises a further difficulty that if verse 1 refers specifically to the formation of the earth over the six days it would be strange for verse 2 to already refer to the ‘earth’ as if such an entity already existed (in any form).

In any event, in addition to the grammatical and theological issues, commencing with such an elaborate subordinate clause seems unnatural and awkward. Rashi himself senses a deeper meaning in the verse as his opening remark is אין זה אומר אלא דרשני. He first launches into a Midrashic explanation and only then offers his peshat based solution.

The traditional reading - be-reishit is absolute

This takes us to the more traditional readings which seem to gloss over the syntactic difficulty. The translation of the Septuagint (originally in Greek) and followed by most major Christian translations (including Vulgate and King James Version) is along the lines of: ‘In the beginning God made the heaven and the earth’. This reading is also followed by Hertz.[7]

But even within this reading, there are basically three main schools of thought.

The Ramban sees the opening verse as describing an initial act of creation which brought primal matter (hiyuli) into existence, this being the raw material from which the universe is formed. Since this substance encompasses the matter of all of creation the verse refers to it as the creation of ‘heaven and earth’.

According to the Ramban, verse 2 then depicts the primordial state of the world during this prehistoric stage. The creation of light in verse 3 then signals a transition from the initial chaos towards order.

The Ramban’s translation of heaven and earth is indeed very ‘creative’. The problem is that the verse now refers to a discrete primal creation entirely distinguishable from the formation of the earth over the six days of creation. This breaks the parallel with the closing summary verse which refers to the completion of heaven and earth:

וַיְכֻלּוּ הַשָּׁמַיִם וְהָאָרֶץ וְכָל־צְבָאָם (ב׳:א)

In other words, we should expect symmetry between the heaven and earth references which bookend the creation story so that the heaven and earth mentioned in 1:1 is identical with the heaven and earth then completed in 2:1.

A similar problem arises when we consider verse 2:4: 

אֵלֶּה תוֹלְדוֹת הַשָּׁמַיִם וְהָאָרֶץ בְּהִבָּרְאָם בְּיוֹם עֲשׂוֹת ה׳ אֱלֹקים אֶרֶץ וְשָׁמָיִם (ב׳:ד)

This verse contains the same elements as 1:1 but clearly refers to a more concrete reality in contrast to the basic matter to which the Ramban refers.

As an alternative to the Ramban, the verse can be understood as a headline summary of the entire creation process. But also here there are two potential variations. It can be read as a one-line summary of the six days of creation but not adding any new information, or a more comprehensive statement which encompasses every aspect of creation. In the words of Hertz: 

“Verse 1 is a majestic summary of the story of Creation: God is the beginning, nay the Cause of all things. The remainder of the chapter gives details of the successive acts of creation. Ages untold may have elapsed between the calling of matter into being and the reduction of chaos into ordered arrangement”

Hoffman suggests that this subtle variation is the point of contention in the following Midrash: 

ר׳ יהודה אומר, האורה נבראת תחלה — משל למלך שבקש לבנות פלטין... ור׳ נחמיה אומר, העולם נברא תחלה — משל למלך שבנה פלטין ועטרה בנרות״ וכו׳ (בראשית רבה ג׳:א)[8]

According to R Yehudah, light was the first creation as the first verse is a pure summary. On the other hand, according to R Nechemiah, the first verse is a comprehensive statement which covers the creation of the universe ex-nihilo as well as its refinement through the six days of creation (similar to Hertz).  

Hoffman seems to marginally favour the second possibility. He further argues that the verse follows the classic biblical rule of providing a general statement followed by the particulars. Yet he also adds the all-important point that the verse serves to unite the apparently disparate acts of creation and the evolution of the universe.

According to both the Ramban as well as Hoffman’s favoured interpretation - which I personally find the most compelling - the verse makes a definitive statement as to the origins of the cosmos, not just the formation of the world as is.

Grammatical irregularity as a literary device[9]

Can the traditional approach address the grammatical difficulty? Surprisingly, the Ramban brings Rashi’s question but never addresses the grammatical issue head-on. Hoffman on the other hand makes a very interesting point which provides a technical answer, but may have a more profound implication. Hoffman suggests that the absent noun governed by the word Bereishit should be yom so that the meaning is ‘in the beginning of days’. However, and here is the critical point, the Torah cannot write the word yom as it only becomes a defined term in verse 5.[10]

ברם, לא היה מקום לכתוב כאן ׳הימים׳, שכן השם יום מופיע רק לאחר מכן. רק לאחר שהבורא ית׳ קרא לאור – יום, רק לאחר מכן נלקח שם זה לציון היממה (מערב עד ערב) ולציון הזמן בכלל. לפני כן – הרי זה דבר בלתי מיודע, סתמי, שעל תחילתו מסופר לנו כאן. אנו שומעים שמשהו מתחיל, וזאת מבלי לדעת מהו דבר סתמי זה, אך במהרה אנו מבינים, מתוך הביטויים ״יום אחד״, ״יום שני״ וכו׳, כי הימים החלו.

This resonates with the Rashbam’s general assertion repeated on many occasions that the Torah will always provide the needed background of a term or concept in advance of its application.[11]

In our context, the implication is that when discussing the point of creation, the verse cannot speak of the beginning of days as the concept of a day is yet to emerge. But it’s not just the technical definition of day which is lacking. If we are talking about creation ex-nihilo then there is no reference point which can be used as the very concepts of time and space do not exist. The construct state of the word be-reishit frustrates the reader as without being followed by an absolute noun it fails to set the act of creation within an established timeframe.[12] Yet time cannot be used as a reference when describing its very creation. Accordingly, the grammatical difficulty becomes a device to highlight the major philosophical paradox of creation and God’s all encompassing existence. In the words of Sarna: “for the first time in the religious history of the Near East, God is conceived as being entirely free of temporal and spatial dimensions”.[13]

     

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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[1] Even this translation is imprecise as if the translation was ‘creation of’ then the grammatical form would have been beriat (construct) instead of bara. The word bara is a finite verb and functions according to Rashi as a verbal noun meaning ‘the creating of..’. There are in fact a few examples of a noun in the construct state followed by a finite verb e.g. Lev. 14:46

[2] See Rashi 2:4 who derives from that verse that there was some prior creation. As discussed further on, Ibn Ezra seems to understand the state of the universe in verse 2 as having eternally existed (though he doesn’t say it explicitly).

[3] On the other hand, according to Rashbam the verse acknowledges (incidentally at least) that God was responsible for the creation of the early universe described in verse 2. It is not clear according to the Rashbam why the grammatical form is bara instead of beriat.

[4] A quote from the German biblical scholar Gerhard von Rad, highlights the theological sensitivity:

“We do not follow the old conjecture that v. 1 is not to be understood as an independent sentence but as the introductory clause to v. 2 or even v. 2… Syntactically perhaps both translations are possible, but not theologically… Ultimately in spite of all arguments given by all the different sides, it boils down to the reader’s personal preference and presuppositional pool concerning his or her understanding of God. In other words, a person’s view of God determines his or her translation… On theological grounds, option one makes the best sense in light of its context.” (cited in Holmstedt, Robert D. “The Restrictive Syntax of Genesis I 1.” Vetus Testamentum 58, no. 1 (2008): 56–67. http://www.jstor.org/stable/20504316)

[5] Ramban however argues that the hiyuli or hyle was created ex-nihilo in verse 1 contra Aristotle as discussed further below.

[6] If verse 2 is part of the subordinate clause (like Rashi) then היתה הארץ with the verb preceding the noun would have been another possibility. Another problem is that the grammatical form should be bero instead of bara (as Rashi himself acknowledges) per the masoretic vocalisation.

[7] There are exceptions. The Revised Standard Version for example translates verse 1 as follows: “In the beginning when God created the heavens and the earth…”. A similar construction is adopted by Robert Alter: “When God began to create heaven and earth…”.

[8] It is worth noting that the Malbim considered the opinion of R Yehudah as consistent with Rashi’s reading. Hoffman disagrees as he does not believe it is plausible that such a complex variant reading would have no elaboration in the Midrash. As mentioned, Rashi never states that there was no creation prior to light, only that 1:1 provides no new information about the origins of the universe as it is purely a subordinate clause. In fact his comments to verse 2:4 seem to suggest there was a comprehensive primordial creation on the first day, presumably before the creation of light.

[9] The idea that a grammatical irregularity can be used as a literary device in the Torah is well attested. As a simple example, I have previously suggested that the use of the masculine form in reference to the daughters of Tzelofchad in Num 35:6 align with their bold contention that they should inherit like males, and the general breakaway from the female gender stereotype (from a biblical standpoint at least).

[10] There are other instances where the word reisihit is not followed by a noun e.g. Deut. 33:21 and Lev 2:12. Rashi used the example of Is. 46:10 - מגיד מראשית אחרית - where he says you need to impute the noun ימים so that the meaning is ‘from the beginning of days’. Rashi rejects the explanation on the basis that the water already co-exists with the land in verse 2 and the heavens are created from the water. However, if we adopt the understand that the concepts of heaven and earth in verse 1 refer to the creation of the cosmos in totality rather than a discrete prior event, then the question falls away.

[11] Rashbam already makes this point in his comments to verse 1 explaining that Moshe decided(!) to open the Torah with the story of creation in order to provide the necessary context for the Mitzvah of Shabbat. Whilst this particular assertion requires separate discussion, the general point is clear and well grounded.

[12] Many scholars derive support for reading verse 1 and 2 as dependent relative clauses from the parallel with Enuma Elish creation myth which commences in this manner:

“When in the height heaven was not named,
And the earth beneath did not yet bear a name…”

But here too I would argue that the function of our verse is precisely to subvert the Enuma Elish opening by replacing the polytheistic overtones with a solemn declaration that God is the source of all existence.

[13] The JPS Torah Commentary, Genesis, p5 

דברים

The Courtroom as a Microcosm of the Battlefield

Moshe opens his first speech in Sefer Devarim by harking back to the time when the nation was still encamped at Mt Sinai. He recalls how God instructed him to commence the 11-day journey to Israel and references God's words of encouragement for the upcoming conquest. Moshe then recalls how 'at that time' (ba-et ha-hee) he appointed judges to share the burden of leadership and to deal with the people's many disputes. Thereafter, he recounts the episode of the spies and its tragic consequences.

It is eminently understandable why Moshe focused on the episode of the spies as this was an apt time to remind the people of the previous failure. By recounting the repercussions, they would be focused on not repeating those errors now. Indeed, the need for resilience and faith in the upcoming conquest would be a core theme in the rest of Moshe's speech. 

Far more challenging, however, is the reason for recounting the recruitment of judges at this point. First, the review of the judges episode interrupts the natural link between the instruction to advance towards the land and the review of the spies episode, Second, despite the use of the ba-et ha-hee phrase (which appears 15 times throughout Sefer Devarim), it is far from clear that this episode took place at this precise historical juncture as according to the sequencing of Sefer Shemot the judges were selected before Matan Torah. Third, Moshe's purpose in this speech is evidently not to provide a comprehensive review of all events, therefore each episode recalled must serve a special rhetorical purpose. This is all the more significant in the present case as we are discussing the very opening of the speech.        

To address these points we will compare the episodes of the spies and the judges as framed here within the specific context of Moshe's speech.[1]

Comparison of the two passages

There are several noteworthy points of comparison between the two passages. 

Both passages involve the presentation of a dilemma and an initiative to solve it. However, the position of Moshe and the Israelites, as well as other aspects, are inverted.

In both passages, the ‘problem’ relates, in some form, to being overwhelmed and outnumbered. In the judges passage, Moshe cannot cope with the large number of Israelites (Deut. 1:10), whereas in the spies passage the people are fearful of the size of the enemy (Deut. 1:28).

In the judges passage, Moshe presents the initiative to the Israelites, whereas in the case of the spies it is the people who take the initiative to Moshe. The contours of both initiatives are also similar. Both involve a suggestion to select a group of tribal representatives which is followed by a positive response from the other party. These thematic similarities are reflected in textual correspondences as well: 

וָאֹמַר אֲלֵכֶם בָּעֵת הַהִוא לֵאמֹר לֹא־אוּכַל לְבַדִּי שְׂאֵת אֶתְכֶם... הָבוּ לָכֶם אֲנָשִׁים חֲכָמִים וּנְבֹנִים וִידֻעִים לְשִׁבְטֵיכֶם וַאֲשִׂימֵם בְּרָאשֵׁיכֶם׃ וַתַּעֲנוּ אֹתִי וַתֹּאמְרוּ טוֹב־הַדָּבָר אֲשֶׁר־דִּבַּרְתָּ לַעֲשׂוֹת׃ וָאֶקַּח אֶת־רָאשֵׁי שִׁבְטֵיכֶם אֲנָשִׁים חֲכָמִים וִידֻעִים וָאֶתֵּן אוֹתָם רָאשִׁים עֲלֵיכֶם שָׂרֵי אֲלָפִים וְשָׂרֵי מֵאוֹת וְשָׂרֵי חֲמִשִּׁים וְשָׂרֵי עֲשָׂרֹת וְשֹׁטְרִים לְשִׁבְטֵיכֶם׃ לֹא־תַכִּירוּ פָנִים בַּמִּשְׁפָּט כַּקָּטֹן כַּגָּדֹל תִּשְׁמָעוּן לֹא תָגוּרוּ מִפְּנֵי־אִישׁ כִּי הַמִּשְׁפָּט לֵאלֹהִים הוּא וְהַדָּבָר אֲשֶׁר יִקְשֶׁה מִכֶּם תַּקְרִבוּן אֵלַי וּשְׁמַעְתִּיו׃ (דברים א':ט-יז)

וָאֹמַר אֲלֵכֶם בָּאתֶם עַד־הַר הָאֱמֹרִי אֲשֶׁר־יְהֹוָה אֱלֹהֵינוּ נֹתֵן לָנוּ׃ רְאֵה נָתַן יְהֹוָה אֱלֹהֶיךָ לְפָנֶיךָ אֶת־הָאָרֶץ עֲלֵה רֵשׁ כַּאֲשֶׁר דִּבֶּר יְהֹוָה אֱלֹהֵי אֲבֹתֶיךָ לָךְ אַל־תִּירָא וְאַל־תֵּחָת׃ וַתִּקְרְבוּן אֵלַי כֻּלְּכֶם וַתֹּאמְרוּ נִשְׁלְחָה אֲנָשִׁים לְפָנֵינוּ וְיַחְפְּרוּ־לָנוּ אֶת־הָאָרֶץ וְיָשִׁבוּ אֹתָנוּ דָּבָר אֶת־הַדֶּרֶךְ אֲשֶׁר נַעֲלֶה־בָּהּ וְאֵת הֶעָרִים אֲשֶׁר נָבֹא אֲלֵיהֶן׃ וַיִּיטַב בְּעֵינַי הַדָּבָר וָאֶקַּח מִכֶּם שְׁנֵים עָשָׂר אֲנָשִׁים אִישׁ אֶחָד לַשָּׁבֶט׃ וַיִּפְנוּ וַיַּעֲלוּ הָהָרָה וַיָּבֹאוּ עַד־נַחַל אֶשְׁכֹּל וַיְרַגְּלוּ אֹתָהּ׃ (דברים א':כ-כד) 

Most importantly, as will be discussed further below, a directive to 'not fear' is central to both episodes.

In light of the above, it is important to determine the significance of the interplay between these two episodes in the context of Moshe's speech.

Courtroom as microcosm of the battlefield

Unlike in the original narrative, when Moshe recounts the appointment of the judges, we are privy to a direct communication between Moshe and the judges. The instruction to the judges includes a directive that a judge remain objective and impartial, and not be intimidated by any party regardless of power or status:[2] 

וָאֲצַוֶּה אֶת־שֹׁפְטֵיכֶם בָּעֵת הַהִוא לֵאמֹר שָׁמֹעַ בֵּין־אֲחֵיכֶם וּשְׁפַטְתֶּם צֶדֶק בֵּין־אִישׁ וּבֵין־אָחִיו וּבֵין גֵּרוֹ׃ לֹא־תַכִּירוּ פָנִים בַּמִּשְׁפָּט כַּקָּטֹן כַּגָּדֹל תִּשְׁמָעוּן לֹא תָגוּרוּ מִפְּנֵי־אִישׁ כִּי הַמִּשְׁפָּט לֵאלֹקים הוּא וְהַדָּבָר אֲשֶׁר יִקְשֶׁה מִכֶּם תַּקְרִבוּן אֵלַי וּשְׁמַעְתִּיו׃ (דברים א:יז)

These very qualities which Moshe sought in the judges seem to have been glaringly absent when it came to the spies. When the spies reported back to the people, size made all the difference and the people were intimidated as a result:

אָנָה  אֲנַחְנוּ עֹלִים אַחֵינוּ הֵמַסּוּ אֶת־לְבָבֵנוּ לֵאמֹר עַם גָּדוֹל וָרָם מִמֶּנּוּ עָרִים גְּדֹלֹת וּבְצוּרֹת בַּשָּׁמָיִם וְגַם־בְּנֵי עֲנָקִים רָאִינוּ שָׁם׃ וָאֹמַר אֲלֵכֶם לֹא־תַעַרְצוּן וְלֹא־תִירְאוּן מֵהֶם׃ (דברים א:כח)

If the judge is God's representative in the courtroom then on the battlefield that responsibility is assumed by the Israelite soldier. Just as size and relative power does not determine the outcome in the courtroom, so too it should be disregarded on the battleground. The courage of the judge thus serves as a model for the soldiery who will need to face off a formidable enemy.[3]  

The issue is one of bravery and valour, but not just. The courtroom paradigm reminds us that whilst the enemy may appear larger and stronger, overseeing the ultimate outcome is the Supreme Judge. In a sense, the battleground should be conceived of as a macrocosm of the courtroom whereby the righteous side, fighting with faith and conviction, emerges victorious.

A matter 'too difficult'

When the people approach Moshe at the beginning of the story of the spies, their words closely mirror the case of a judge who is unable to deal with the matter before him and must escalate to Moshe:

...לֹא תָגוּרוּ מִפְּנֵי־אִישׁ כִּי הַמִּשְׁפָּט לֵאלֹקים הוּא וְהַדָּבָר אֲשֶׁר יִקְשֶׁה מִכֶּם תַּקְרִבוּן אֵלַי וּשְׁמַעְתִּיו׃ (דברים א:יז)

רְאֵה נָתַן ה' אֱלֹהֶיךָ לְפָנֶיךָ אֶת־הָאָרֶץ עֲלֵה רֵשׁ כַּאֲשֶׁר דִּבֶּר ה' אֱלֹקי אֲבֹתֶיךָ לָךְ אַל־תִּירָא וְאַל־תֵּחָת: וַתִּקְרְבוּן אֵלַי כֻּלְּכֶם וַתֹּאמְרוּ... (דברים א:כא-כב)

A matter ‘too difficult’ for the judges is generally understood as a matter too technically complex. In other words, where a verdict cannot be reached by the judges, Moshe acts as the final arbiter of the law. However, if we read the clause as a direct continuation of the injunction to ‘fear no man’, then it obtains a new (or additional) meaning. The case which must be escalated to Moshe is one where, due to the profile of the case or the parties involved, there is a risk that the judge will be overawed.[4] 

This alternative reading becomes highly relevant in the context of the spies. The initiative to send spies may be construed as a strategic move, but it may also expose underlying fear and hesitation. Moshe intimates here (albeit with the benefit of hindsight) that the people were motivated by the latter. Due to their fear and lack of faith, the matter was indeed 'too difficult for them', and as a result they brought the matter to him.[5] At the same time, Moshe identifies the fearless and autonomous persona of the judge as the paradigm for the soldier in the upcoming conquest.

Judge as foil to slave 

To gain a fuller appreciation of the relevance of the judges passage to the opening of Moshe's speech, one must also consider bear in mind the complexity of transition from slaves to sovereign nation. The absolute dependency of the Israelites upon their Egyptian masters, provides an important backdrop to the fear of waging battle and entering the land. Settling the land presupposes an autonomous existence on the individual and national level, which is polar opposite to the life of the slave. This is a well attested motif constantly lurking in the background to the wilderness sojourn. 

In this regard, the persona of the judge could not be more different from that of the slave. By maintaining impartiality, fierce independence, and resisting all external pressures, the judge expresses a personal autonomy which stands in marked distinction to the slave.[6] The former Israelite slaves establishing their own judiciary, therefore becomes a defining symbol of their emancipation.

Just as important as the process of independent adjudication, is its stated objective. When laying out the mandate of the judges, Moshe does not simply require the judge to withstand intimidation, but emphasises the need to hear everyone equally regardless of status: "Hear out your fellow men, and decide justly between any man and a fellow Israelite or a stranger… hear out low and high alike". This ideal - to give an equal voice to all members of society – stands in stark relief to the imbalance of power inherent in the system of slavery.[7]

The autonomy exhibited by the judge, coupled with their mandate to provide equal treatment to all, is critical to shaping the values and identity of the new nation which is a key focus of Sefer Devarim.[8] In sharp contrast to ancient Near Eastern norm, the Torah endorses a system of collective power sourced in the individual and community, rather than a system of exclusionary power whereby the king and the elite dominate. We therefore find that the conventional status of king as elected son of God is supplanted by the collective polity of Israel referred to as ‘sons of God’ (Deut. 14:1); in place of the scribal and priestly elite, Israel as a collective is to become a ‘wise and discerning nation’ (Deut. 4:6) and a ‘kingdom of priests’ (Ex. 19:6). The powers of a king are severely curtailed and a strong ambivalence hangs over the entire institution.[9] It is therefore instructive that the appointment of the judges, tasked with listening to everyone on equal terms, opens the book of Devarim. 

A similar emphasis can also be discerned in the process through which the judges were appointed. In what might be described as an early example of judicial independence, Moshe reports that he directed the people to select the judges (havu lakhem),[10] and the judges themselves are considered representatives of the people.[11] This is a surprising twist given that the pretext for the appointment was the excessive pressure exerted on Moshe personally, creating an expectation for the judges to be cast as representatives of Moshe. It is also important to highlight that the selection was based exclusively on individual qualities (see v.15) and not on pedigree. Thus, even as the judiciary was established, the people were to take an active role in terms of both selection and composition. The move is significant as, beyond its democratic underpinnings, it aligns the Israelites with the objectives of the judiciary and the required qualities. 

In summary, the importance of the judges passage in the opening of Moshe's valedictory speech serves several linked purposes. The fundamental decision to appoint judges represents a diffusion of power and diversity of leadership. The consultation initiated by Moshe coupled with selection of the judges by representatives of the people, democratises the process and fuels collective participation. The function of the judiciary highlighted by our passage - to ensure justice for all and equality before the law – promotes the conception of equal standing before God. Finally, the God-fearing but courageous persona of the judges alludes to the autonomy and independence required on an individual and national level, as the Israelites seek to establish themselves as a free and sovereign nation.

 

 

 

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[1] For various alternative explanations of the placement of the judges passage, see Ramban, Abravanel and R' D.Z. Hoffman. Note that our focus here is on the interaction between these two episodes within Moshe's speech, and not the apparent contradictions with the earlier narratives. 

[2] Some rabbinic authorities deduced based on Sifri and Rambam that a judge is required to endanger his life rather than abscond, see Bach (C.M.12:1). This is particularly interesting for the purposes of the comparison proposed here between the battlefield and the court. 

[3] This proposition takes on additional significance when we account for the fact that the judges in those days were military personnel (the overlap of position is noted by Abravanel and R' Hoffman, as well as modern scholars). 

[4] One viewpoint found in the Talmud is that the change from davar ha-gadol to davar ha-kasheh reflected a deliberate modification on the part of Moshe to Yitro's original plan (TB Sanhedrin 8a; Rashi, Num. 27:5). 

[5] Rashi's commentary is on point:

ותקרבון אלי כלכם. בְּעִרְבּוּבְיָא; וּלְהַלָּן הוּא אוֹמֵר "וַתִּקְרְבוּן אֵלַי כָּל רָאשֵׁי שִׁבְטֵיכֶם וְזִקְנֵיכֶם וַתֹּאמְרוּ הֵן הֶרְאָנוּ וְגוֹ'", אוֹתָהּ קְרִיבָה הָיְתָה הוֹגֶנֶת – יְלָדִים מְכַבְּדִים אֶת הַזְּקֵנִים וּשְׁלָחוּם לִפְנֵיהֶם, וּזְקֵנִים מְכַבְּדִים אֶת הָרָאשִׁים לָלֶכֶת לִפְנֵיהֶם, אֲבָל כָּאן "וַתִּקְרְבוּן אֵלַי כֻּלְּכֶם" בְּעִרְבּוּבְיָא – יְלָדִים דּוֹחֲפִין אֶת הַזְּקֵנִים, וּזְקֵנִים דּוֹחֲפִין אֶת הָרָאשִׁים (ספרי)

[6] The following definition of personal autonomy is useful for our purposes: 

“Personal autonomy (also referred to as ‘individual autonomy’) refers to a psychological property, the possession of which enables agents to reflect critically on their natures, preferences and ends, to locate their most authentic commitments, and to live consistently in accordance with these in the face of various forms of internal and external interference. Personally autonomous agents are said to possess heightened capacities for self-control, introspection, independence of judgment, and critical reflection; and to this extent personal autonomy is often put forth as an ideal of character or a virtue, the opposite of which is blind conformity, or not ‘being one’s own person’.” (“Autonomy: Normative,” by M. Piper, The Internet Encyclopedia of Philosophy, ISSN 2161-0002, https://iep.utm.edu/)

[7]  As always, there is a gap between theory and practice as the prophets were constantly calling out the miscarriage of justice. Likewise, Thomas Jefferson could quill the words ‘all men are created equal’ and still be a slave owner. Nevertheless, the articulation of the vision sets the direction of travel.

[8] Regarding the meaning of the phrase havu lakhem, compare Rashi and the Netziv in their respective commentaries. Netziv understands that the people were themselves responsible for the selection (as we have suggested), whereas Rashi provides a more restricted meaning.

[9] See J. Berman, Created Equal: How the Bible Broke With Ancient Political Thought (New York: Oxford University Press, 2011), pp. 59-68; 114-117.

[10] The appointment of a king is tied to a request of the people to replicate the 'surrounding nations' suggesting a sub-optimal scenario. In Sefer Shmuel the request for a king is fiercely criticised. Whether in fact the appointment of a king is an absolute command was the subject of a tannaitic dispute (TB Sanhedrin 20b). The negative position reflects the view of R. Nehorai which is elaborated upon at length by the Abravanel (Deut. 17:3 and 1 Sam. 8:4). 

[11] The judiciary, as described here, may not be defined as independent in the modern sense, as Moshe (the executive branch) was the supreme authority who dealt with the ‘difficult’ cases. However, the system prescribed for the post-Moshe era (Deut. 16:18-17:14), including the establishment of the central judiciary, notably omits any role for the king or the prophet (or oracle for that matter) and may indeed be the earliest known model of judicial independence which entailed separation of powers. See D. C. Flatto “The Historical Origins of Judicial Independence and Their Modern Resonances”, 117 Yale L.J. Pocket Part 8 (2007), http://yalelawjournal.org/forum/the-historical-origins-of-judicial-independence-and-theirmodern-resonances

פינחס

The Mo'ed of the Tamid

The list of Korbanot mentioned in Parashat Pinchas raises a difficult challenge. Seemingly these should be located in Sefer Vayikra which describes the various categories of Korbanot, as well as the details of the various festivals during which the Musafim are typically brought.[1] The Musafim are alluded to, but for some reason the details are deferred to Sefer Bamidar.

The appearance of the Korban Tamid at the start of the list raises particular questions. The details of the Korban Tamid were previously set out in almost identical terms in Parashat Tetzaveh (Ex. 29:38-41) and referenced again in Parashat Tzav (Lev. 6:2). Why are the details of the Korban Tamid repeated here alongside the Musafim?

Ramban addresses the first question by suggesting that the Musafim were not in fact offered in the wilderness.[2] The instructions relating to the Musafim were therefore only given as the final preparations were made to enter the land. It seems that the Ramban's general position that the Torah follows chronological order informs his approach here.

The problem is that there are many Mitzvot which explicitly apply only upon entry into the land, and nevertheless the instructions were given at an earlier point. This includes the Korban Omer and Shtei HaLechem which are discussed within the very passage in Vayikra which omits the details of the Musafim.[3]

Second, if this reasoning were correct, one would have expected the Torah to introduce the Musafim with a caveat that the foregoing applies when they enter the land (e.g. ki tavo'u el ha'aretz…) as it indeed does in other places where such limitation applies. Other than the question of location, there seems to be no compelling textual or other reason to assume that the Musafim were only offered once in the land. The Ramban's view also seems to contradict the Mishna (Menachot 4:4) which assumes that the Korbanot mentioned in Sefer Bamidbar were in fact offered in the wilderness.

Due to these reasons, I would like to consider an alternative approach which relates the location of the passage to the overarching theme of Sefer Bamidbar.

Vayikra to Bamidbar – from Tamid to Musaf

As discussed in a previous post, Sefer Vayikra deals with the fundamental framework and structure of the Mishkan. It also deals with the various categories and definitions of purity and holiness, and their immediate legal ramifications and associated obligations. These systems and laws are fixed and rigid.

Sefer Bamidbar, in contrast, speaks – through the medium of law and narrative - of a dynamic interaction between God and the people. This is borne out primarily by the fact that Sefer Bamidbar is a narrative with legal portions woven in. Narratives are fluid; new circumstances arise which challenge prior stability. The heart of Sefer Bamidbar is a story of failure and revival. One generation sins and dies out and a new one emerges from the ashes.[4] Vayikra, on the other hand, comprises a well-structured body of law with a couple of isolated narratives. In short, Sefer Vayikra is static whereas Sefer Bamidbar is kinetic. Sefer Bamidbar therefore focuses – even within the legal context (as we will shortly see) - on the unscripted and the extraordinary.

A common conception is that Sefer Bamidbar focuses on the Israelite interaction with the Mishkan whilst Vayikra focuses on the Kohanim. But this doesn't quite follow through. The lighting of the Menorah is in Bamidbar, yet it is performed by Aharon. As presently discussed, Sefer Bamidbar also contains the passage of the Musafim which is more related to the world of the Kohanim. Within Sefer Vayikra there are also challenges. Parashat Vayikra itself does not actually deal with the Kohanim (they are hardly mentioned) but focuses on the person bringing the Korban. Furthermore, the second half of Vayikra focuses on the holiness outside the Mishkan and contains many laws which are not related specifically to the Kohanim.

Nevertheless, it is fair to say that whilst the Kohanim are the main characters of Sefer Vayikra, Sefer Bamidar places greater emphasis on the wider Israelite camp. The critical point, however, is that this derives from the fact that the Kohanim are the symbols of law and structure which is what truly defines Sefer Vayikra. In the words of R' Sacks:

"The priestly mind sees the universe in terms of distinctions, boundaries and domains, in which each object or act has its proper place and they must not be mixed. The Kohen's task is to maintain boundaries and respect limits. For the Kohen, goodness equals order." (R' Sacks, introduction to the Yom Kippur Machzor)[5].

In the previous post, I noted many examples throughout Sefer Bamidbar which illustrate the point. In the interests of space, I will note below only the main ones relevant to our Parashah and the next.

• Parashat Pinchas commences with the vindication of Pinchas for his extra-judicial killing of Zimri and Kosbi. The courageous act of Pinchas was firmly outside any normative framework.
• After the division of the land, the daughters of Tzelofchad boldly challenge Moshe about the inequity of their position which results in a change to the existing inheritance laws.
• Immediately prior to the passage of the Korbanot, Moshe demands that God appoints a new leader to replace him. The opening phrase - va-yedaber Moshe el ha-shem lei'mor - is unique and notably inverts the standard formula where God commands Moshe.
• The beginning of Matot sets out the laws relating the exceptional ability of a father or husband to annul certain vows.
• Following the battle with Midyan, the officers decide entirely of their own volition to dedicate some of the booty as gratitude to God.
• The tribes of Reuven and Gad initiate a request to settle the east bank of the Jordan. Moshe rebukes them but then accepts the proposal once they offer to fight alongside (and even lead) their fellow tribes in battle.
• The conquests of the sons of Menashe are undertaken through their own initiative.

We may leverage this same model to explain the position of the Musafim. The unique aspects of each festival (whether agricultural or historical) which are integral to their identity as Mikra'ei Kodesh, are set out in Sefer Vayikra. The discussion there pertains to the essence of the day's holiness and therefore belongs squarely in Sefer Vayikra.

In Parashat Pinchas the Musafim are not intrinsic to the identity of the festivals, but additional Korbanot offered at these opportune and festive occasions. They are a response to the holiness of the day but not part of its core definition. By adding to the regular Tamid, they enhance and harness the spiritual atmosphere of the holy day. They are not human-led initiatives but nevertheless lie outside the normal structure. This may explain why over and over the Torah emphasises that these Korbanot are to be offered in addition to (milvad), and not instead of, the regular Tamid.

This point alone might explain why the Tamid features at the start of the list. It is the baseline requirement which the Musafim build off. The contrast with the norm highlights the special nature of these Korbanot and their compatibility with the dynamic nature of Sefer Bamidbar.

Every day as a Mo'ed

We might stop here but I would like to tentatively suggest there is something more going on with the repetition of the Tamid. The concluding verse of our passage states that these are the laws of the Korbanot to be offered on the various Mo'adim:

וַעֲשִׂיתֶם אִשֶּׁה לַה' עֹלָה אוֹ־זֶבַח לְפַלֵּא־נֶדֶר אוֹ בִנְדָבָה אוֹ בְּמֹעֲדֵיכֶם לַעֲשׂוֹת רֵיחַ נִיחֹחַ לַה' מִן־הַבָּקָר אוֹ מִן־הַצֹּאן׃ (במדבר ט"ו:ג)

Typically the Mo'adim are considered to refer to the various festivals/holidays. What is interesting here is that the term Mo'ed seems to encompass the Tamid as well. This is even clearer from the introductory verse which immediately precedes the Korban Tamid.

צַו אֶת־בְּנֵי יִשְׂרָאֵל וְאָמַרְתָּ אֲלֵהֶם אֶת־קָרְבָּנִי לַחְמִי לְאִשַּׁי רֵיחַ נִיחֹחִי תִּשְׁמְרוּ לְהַקְרִיב לִי בְּמוֹעֲדוֹ׃ (במדבר כ"ח:ב)

Every day demands a new Korban Tamid and therefore every day is a Mo'ed. In the words of Rashi:[6]

בְּכָל יוֹם הוּא מוֹעֵד הַתְּמִידִים

The use of the term Mo'ed with reference to the daily Tamid suggests that every day is unique and deserves to be marked independently with its own Korban. Each day is infused with new meaning and enables a new encounter with God.

The ability of the Tamid to mark each day afresh is related to the capacity of the Tamid to inaugurate. The Tamid is the only Korban mentioned in Sefer Shemot other than those which were part of the Mishkan's inauguration. In fact, it is appended to the instructions for the inauguration ceremony as though it is an organic part of it.[7]

This inaugurating function of the Tamid is acknowledged in the Halakhic sources as well. The Mishna states that a new Mizbe'ach had to be inaugurated through the morning Tamid:

...שֶׁאֵין מְחַנְּכִין אֶת מִזְבַּח הַזָּהָב אֶלָּא בִקְטֹרֶת הַסַּמִּים, וְלֹא מִזְבַּח הָעוֹלָה אֶלָּא בְתָמִיד שֶׁל שַׁחַר, וְלֹא אֶת הַשֻּׁלְחָן אֶלָּא בְלֶחֶם הַפָּנִים בְּשַׁבָּת, וְלֹא אֶת הַמְּנוֹרָה אֶלָּא בְשִׁבְעָה נֵרוֹתֶיהָ בֵּין הָעַרְבָּיִם (משנה מנחות ד:ד)[8]

This all stands in stark contrast with the way the Tamid is described in Sefer Vayikra. In Sefer Vayikra, the Korban Tamid is presented as the paradigm of continuity. Its purpose – in the specific context of Vayikra - seems to be to ensure that the Mizbe'ach is not left vacant.

צַו אֶת־אַהֲרֹן וְאֶת־בָּנָיו לֵאמֹר זֹאת תּוֹרַת הָעֹלָה הִוא הָעֹלָה עַל מוֹקְדָה עַל־הַמִּזְבֵּחַ כָּל־הַלַּיְלָה עַד־הַבֹּקֶר וְאֵשׁ הַמִּזְבֵּחַ תּוּקַד בּוֹ׃ (ויקרא ו':ב)

The passage raises many difficulties due to the way it digresses from the general law of the Olah, to the Tamid, to the continual fire, to the clearing of the ashes. The important point for our purposes is that the role of the evening Tamid seems to be to engage the Mizbe'ach throughout the night. Note that unlike the passages for the other Korbanot in Parashat Tzav, there is no reference in the verse to the actual offering or preparation of the Tamid – when it is first mentioned it is already burning on the Mizbe'ach (היא העלה).

This suggests that the main objective is the presence on the Mizbe'ach more so than the offering itself. Hence it is mentioned in the same verse as the fire which needs to be continually burning upon the Mizbe'ach. The fire of the Mizbe'ach is always ready to consume and the Tamid ensures it is continually serviced.

In practice, it is possible that the Tamid may have been fully consumed before the morning. The Netziv, however, based on our verse, understood that there is a literal requirement for the Kohanim to ensure the Tamid is burnt gradually so that the process is extended throughout the night until morning:

המצוה על הכהנים שיראו שיהיו אברי העולה מונחים ונעכלים מעט מעט עד הבוקר ולא יהיו נעכלים מיד ויהא המזבח פנוי מעולה ומש״ה היה המצוה לעשות קיץ למזבח. היינו כדי שלא ישאר המזבח בלי אברי עולה: (העמק דבר, ויקרא ו':ב)

The Netziv sees this verse as the source for a special category of Korban referred to in the Mishna as 'Kayitz LaMizbe'ach'.[9] These were communal burnt offerings brought during 'downtimes' to ensure the Mizbe'ach was never left vacant.

Tamid – continuous or regular?

The term 'Tamid' attaches itself to various services in the Mishkan and can mean either something continuous or regular/consistent. The Tamid requirement of the Lechem HaPanim, for example, is a continuous requirement, to the extent that the majority view of Chazal held that the table could not be vacant of bread even for a brief moment.[10] On the other hand, the Menorah had to be kindled daily (or twice daily according to some) and this regularity seems to fulfil the basic Tamid requirement in that context. According to many sources, however, the Menorah (or at least one lamp) was kept burning continuously as well.[11]

Indeed, it is worth reflecting on whether a regular act is simply a means to an end to ensure continuity or whether each repetition holds independent value. Was the Menorah lit daily to simply ensure continuity or was there an objective importance to the daily act of lighting? Theoretically, if the lamps of the Menorah would keep burning for days at a time (Chanukah?) would it be necessary to relight it every day?[12] From a practical standpoint the answer is clear. The amount of oil was calibrated to ensure that it had to be relit at least once daily which was clearly the Torah's intention.[13] Hence we may conclude that both elements are crucial.

Returning to the Korban Tamid, it is possible that it encompasses both these dimensions as well. The emphasis on continuity is highlighted in Sefer Vayikra which deals with God's constant presence amongst the nation, whilst the aspect of the Tamid which represents renewal and establishes each day as an independent Mo'ed, is highlighted in Sefer Bamidbar. Sefer Bamidbar, as already mentioned, is one long story of rebirth and renewal whereby the new generation replaces the old one and surpasses it. The new generation faces similar challenges to the old one, but the responses and solutions are different. There is continuity on the one hand; but a new encounter and a new relationship, on the other.

 

 

 

 

 

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[1] Only Rosh Chodesh is missing from the Vayikra list. Since there is no prohibition of labour, it is not regarded as one of the Mikra'ei Kodesh.

[2] Ramban (Num. 28:2, Lev. 23:2)

[3] Ramban touches on this point in his commentary to Lev. 23:2.  

[4] This is particularly relevant to understanding the location of the Parah Adumah but that is beyond the scope of this discussion.

[5] Worth noting that this model is utilised by bible critics who claim that formalistic and ritualistic elements are evidence of an independent Priestly source (known fondly as "P"). The underlying argument here accepts the striking contrast but considers it to be 'intelligent design'.  

[6] Ibn Ezra also understood that 'Mo'ado' refers specifically to the Korban Tamid. On the other hand, Ibn Ezra assumes that the term Mo'ed must entail some form of exclusivity and therefore proposes that it refers to the set time within the day (morning and evening) when the Tamid must be brought. This is not consistent with the use of the word Mo'ed in the concluding verse. In any event, the use of the term Mo'ed is striking.

[7] Rashi even suggests that the reason the Tamid is repeated in Parashat Pinchas is because the passage in Parashat Tetzaveh deals only with the Milluim period whereas our passage contains the directive for eternity. This is problematic (as the Ramban points out) since Parashat Tetzaveh already mentions that it applies le-doroteikhem.

[8] Rashi (TB Menachot 50a) explains the source for this law is the verse concerning the Korban Tamid in Parashat Tezaveh (Ex. 29:39) which is written in the context of inauguration. The consequence of this law is that although normally the evening Tamid could be brought even in the absence of the morning Tamid, this is not the case with a new Mizbe'ach which has not yet been inaugurated (see TB Menachot ad loc.).

[9] See Mishna Shekalim 4:4

[10] See TB Menachot 99b

[11] According to some, the ner ma'aravi burnt continuously by way of miracle. The Rambam himself does not reference anything miraculous about the ner maaravi (the centre lamp in his view). According to some interpreters of the Rambam, however, all the lights were meant to burn continuously and relit whenever they went out. Other Rishonim argue altogether that the command is only to light the Menorah at night.

[12] According to R' Chaim Soloveitchik (and various other Acharonim) the Rambam understood there was no Mitzvah to actively light the Menorah, only to ensure it was lit (therefore a non-Kohen could light it, see Hilkhot Bi'at HaMikdash, 9:7). For those that say the lights needed to be extinguished and relit, this poses a problem for the conventional understanding of the Chanukah miracle that the lamps of the Menorah burnt continuously for seven days. However, various sources suggest that the oil was split into eight daily portions and then lit daily (see Beit Yosef, Orach Chaim, 670:1).

[13] See Rambam (Temidin uMusafim 3:11)

שלח

Inadvertent Violation of the Entire Torah

The various circumstances in which a 'sin' offering is required were set out in Parashat Vayikra.[1] Our Parashah now appears to add another category:

וְכִי תִשְׁגּוּ וְלֹא תַעֲשׂוּ אֵת כָּל־הַמִּצְוֺת הָאֵלֶּה אֲשֶׁר־דִּבֶּר ה' אֶל־מֹשֶׁה׃ אֵת כָּל־אֲשֶׁר צִוָּה ה' אֲלֵיכֶם בְּיַד־מֹשֶׁה מִן־הַיּוֹם אֲשֶׁר צִוָּה ה' וָהָלְאָה לְדֹרֹתֵיכֶם׃ וְהָיָה אִם מֵעֵינֵי הָעֵדָה נֶעֶשְׂתָה לִשְׁגָגָה וְעָשׂוּ כָל־הָעֵדָה פַּר בֶּן־בָּקָר אֶחָד לְעֹלָה לְרֵיחַ נִיחֹחַ לַה' וּמִנְחָתוֹ וְנִסְכּוֹ כַּמִּשְׁפָּט וּשְׂעִיר־עִזִּים אֶחָד לְחַטָּת׃ (במדבר ט"ו:כב-כד)

At first glance this case appears to be a communal level transgression similar to the one listed in the Vayikra requiring a special bull offering (par he'elem davar):

וְאִם כָּל־עֲדַת יִשְׂרָאֵל יִשְׁגּוּ וְנֶעְלַם דָּבָר מֵעֵינֵי הַקָּהָל וְעָשׂוּ אַחַת מִכָּל־מִצְוֺת ה' אֲשֶׁר לֹא־תֵעָשֶׂינָה וְאָשֵׁמוּ׃ וְנוֹדְעָה הַחַטָּאת אֲשֶׁר חָטְאוּ עָלֶיהָ וְהִקְרִיבוּ הַקָּהָל פַּר בֶּן־בָּקָר לְחַטָּאת וְהֵבִיאוּ אֹתוֹ לִפְנֵי אֹהֶל מוֹעֵד: (ויקרא ד':יג-יד)

Both passages discuss a communal transgression and both refer to the 'eyes' of the congregation. This term is traditionally understood as alluding to the leaders of the people who regarded as the 'eyes' of the people due to their capacity to guide.[2] Though in the context of the Vayikra passage a literal reading of the word me-einei (eyes) is plausible, in the Bamidbar passage it is more awkward.[3] The association of eyes with leadership may be supported by the nearby dialogue between Moshe and Chovav. Moshe entreats Chovav to remain with the Israelites instead of returning home referring to his ability to act as the 'eyes' (i.e. guide) of the people:

וַיֹּאמֶר אַל־נָא תַּעֲזֹב אֹתָנוּ כִּי עַל־כֵּן יָדַעְתָּ חֲנֹתֵנוּ בַּמִּדְבָּר וְהָיִיתָ לָּנוּ לְעֵינָיִם׃ (במדבר י':לא)

In any event, despite the similarities, the composition of the sacrifices is different in each case – in the Vayikra passage a bull is offered as the sin offering, whereas in the Bamidbar passage a he-goat is brought (as well as a bull as a burnt offering). Furthermore, our passage seems to deal with the case where the nation violates all the Mitzvot, whereas the Vayikra passage seems to deal with a singular transgression.

The traditional view – legal error

These discrepancies led Chazal to the view (referenced by Rashi) that our passage deals with a case where the Sanhedrin mistakenly rules that a certain form of idolatry was permitted.[4] Since idolatry amounts to an abrogation of the covenant, the Torah refers to it as a violation of all the Mitzvot:

בַּעֲ"זָ הַכָּתוּב מְדַבֵּר, אוֹ אֵינוֹ אֶלָּא בְאַחַת מִכָּל הַמִּצְוֹת, תַּ"ל את כל המצות האלה — מִצְוָה אַחַת שֶׁהִיא כְּכָל הַמִּצְוֹת, מַה הָעוֹבֵר עַל כָּל הַמִּצְוֹת פּוֹרֵק עֹל וּמֵפֵר בְּרִית וּמְגַלֶּה פָנִים, אַף מִצְוָה זוֹ פּוֹרֵק בָּהּ עֹל וּמֵפֵר בְּרִית וּמְגַלֶּה פָנִים, וְאֵיזוֹ? זוֹ עֲ"זָ (רש"י)

According to this view the cause of the transgression is the same in both passages, being the product of an errant ruling by the Sanhedrin. The differences simply result from the form of transgression (idolatry vs other sins).

The obvious problem is that our immediate passage contains no clear reference to idolatry, and nor do the surrounding passages. If the passage revolves around idolatry, it should have been mentioned explicitly. Another more general problem is why this passage was separated from the Vayikra passage to begin with. The difficulty is particularly acute for the above interpretation which identifies the sin offering of our passage as a variant of the communal sin offering of the Vayikra passage, only restricted to a particular form of transgression (i.e. idolatry).[5]

Incidentally, the perception that the he-goat offering of our passage is a subcategory of the par he'elem davar, despite the distance between the texts, is evidenced by the fact that the Rambam considers them part of the same commandment. In his brief comments in Sefer HaMitzvot (#68) he only references the par he'elem davar and ignores our passage altogether, however it is clear from the Yad Chazakah (Hil. Shgagot 12:1) that he regards the special case of idolatry as a mere modification of the par he'elem davar.[6]  

The Ramban – special status of communal transgression

The Ramban seeks to explain the meaning of our passage without relying on the overly restrictive interpretation that the passage is dealing (exclusively) with idolatry. He suggests that it is possible to contemplate certain scenarios whereby the community 'inadvertently' abandons the entire Torah, or at least most of it:

הפרשה הזו סתומה במשמעה... ולשון הכתוב שלא נוציא אותו מפשוטו ומשמעו יאמר וכי תשגו מכל המצות ותעברו על כל מה שצוה השם לכם ביד משה שלא תעשו דבר מכל מה שצוה אתכם תקריבו הקרבן הזה ולכך לא הזכיר בכאן כאשר יאמר בקרבנות החטא אחת מכל מצות ה' והנה זה כפי משמעו הוא קרבן מומר לכל התורה בשוגג כגון ההולך ונדבק לאחת מן האומות לעשות כהם ולא ירצה להיות בכלל ישראל כלל ויהיה כל זה בשוגג כגון שיהיה ביחיד תינוק שנשבה לבין האומות ובקהל כגון שיחשבו שכבר עבר זמן התורה ולא היתה לדורות עולם או שיאמרו כמו שזכר בספרי (שלח קטו) מפני מה אמר המקום לא שנעשה ונטול שכר אנו לא עושים ולא נוטלין שכר... וכבר אירע לנו כן בעונותינו (כי) בימי מלכי ישראל הרשעים כגון ירבעם ששכחו רוב העם התורה והמצות לגמרי...

The examples the Ramban brings include situations where the masses believe, for one reason or another, that the Torah is no longer applicable, or was otherwise optional in the first place. He notes that these have historical precedent and are not mere hypothetical examples.[7]

According to R' Yoel Bin Nun the remarkable implication of the Ramban's comments is that members of an entire community are, as a general rule, not regarded as willful transgressors.[8] Since people's action typically reflect their social environments, they are automatically deemed inadvertent.[9] This is the apparent meaning of the final verse in our passage:

וְנִסְלַח לְכָל־עֲדַת בְּנֵי יִשְׂרָאֵל וְלַגֵּר הַגָּר בְּתוֹכָם כִּי לְכָל־הָעָם בִּשְׁגָגָה׃ (ט"ו:כז)

The verse seemingly asserts the principle that a communal sin is deemed inadvertent and therefore eligible for forgiveness. The rationale for this classification is that the Torah understands very well the dynamics and trappings of social pressure. The tendency to conform impairs or negates independent judgement.[10]

This reading is supported by the structure of the surrounding passages. The next passage deals with inadvertent transgression of an individual, and the following passage deals with the brazen transgressor (be'yad ramah) who sins willfully. The fact that there is no passage which deals with wanton transgression on a communal level is instructive.[11] An individual who openly transgresses in contravention to communal norms is guilty of rebellion. But this mode of rebellion is by nature not applicable to a community. It is precisely because of the contagious nature of transgressive behaviour within a social context, that the Torah is harsh on the individual yet forgiving towards the wider community.

The spies episode as the backdrop to our passage

R' Bin Nun's article was subsequently subject of a critique which, inter aila, argued that the Ramban's intention was never to recast every communal sin as inadvertent.[12] The Ramban's classification assumes that the actions of these groups are reflective of genuine but mistaken beliefs. The transgressions are only regarded as inadvertent if the people are subscribing to a philosophical view which renders their actions permissible.[13] Accordingly, there is no substantive difference between an individual and a community when it comes to determining whether an action is willful or inadvertent.

But this does not quite stand up to scrutiny. The Ramban explains the location of the passage as a result of its close proximity to the spies narrative:

ונכנסה כאן בעבור שהם מרו דבר השם ואמרו נתנה ראש ונשובה מצרימה (במדבר י״ד:ד׳) להיות שם במצרים כאשר היו בראשונה בלא תורה ובלא מצות והנה באה הפרשה להודיעם כי אפילו בע"ז יכפר על השוגגים אבל העושים ביד רמה יכרית אותם וכבר פירשתי

According to the Ramban, our passage contains the root principle which enabled the people to escape annihilation following the spies debacle. There, the individual leaders (i.e. ten of the twelve spies) who caused the mutiny were killed, whilst the wider congregation was forgiven. In that episode the congregation's behaviour was not 'inadvertent' in the conventional sense, yet the Ramban presents it as an application of the principle of our passage (and perhaps even establishes the paradigm).[14]

Reading our passage in light of the spies episode seems to corroborate the Ramban's explanation (as understood above).[15] The fallout following the spies' report was a perfect example of the social contagion which we have suggested justifies the labelling of the transgressors as inadvertent. The spies came back with a negative report and overnight triggered a pandemic of fear which triggered the mutiny.

Furthermore, the premise of our passage is that there is a rejection of all the Mitzvot which, in the context of the spies episode, is expressed through the refusal to enter the land and desire to return to Egypt. This dovetails well with the Ramban's position (Lev. 18:25) that the full significance of the Mitzvot can only be realised inside the land. But even if one demurs whether this is valid on an individual level, it is difficult to dispute its validity on a communal-national level.

The link between the two passages is also borne out by the corresponding language expressing forgiveness:

וְנִסְלַח לְכָל־עֲדַת בְּנֵי יִשְׂרָאֵל וְלַגֵּר הַגָּר בְּתוֹכָם כִּי לְכָל־הָעָם בִּשְׁגָגָה׃ (ויקרא ד':יג-יד)

סְלַח־נָא לַעֲוֺן הָעָם הַזֶּה כְּגֹדֶל חַסְדֶּךָ וְכַאֲשֶׁר נָשָׂאתָה לָעָם הַזֶּה מִמִּצְרַיִם וְעַד־הֵנָּה׃ וַיֹּאמֶר ה' סָלַחְתִּי כִּדְבָרֶךָ׃ (במדבר י"ד:יט-כ)

It is noteworthy that as part of the Yom Kippur prayers these two verses are juxtaposed but placed in inverse order. This suggests an acknowledgement by the compilers of the prayers that the later verse provides the underlying rationale for forgiveness in the earlier verse.[16]

Another compelling point which emerges from the Ramban's explanation (but not explicitly mentioned) is the way it resolves a subtle but critical difference in the text of our passage and the Vayikra passage:

 וְאִם כָּל־עֲדַת יִשְׂרָאֵל יִשְׁגּוּ וְנֶעְלַם דָּבָר מֵעֵינֵי הַקָּהָל... (ויקרא ד':יג)

וְהָיָה אִם מֵעֵינֵי הָעֵדָה נֶעֶשְׂתָה לִשְׁגָגָה... (במדבר ט"ו:כב)

As already mentioned, according to the traditional reading, there is no difference in terms of the process leading to the transgression. Both verses speak of an errant legal ruling. However, the key word ne’elam of the first passage is 'missing' in our verse. This alone suggests the subject matter of our verse is not a legal omission. A more precise reading suggests that the violation in our passage was actually instigated by the leaders rather than enabled by their ignorance of the law.

This once again matches the narrative of the spies in which the leaders (the spies were tribal leaders, see Num 13:3) directly caused the mass mutiny. Their influential positions make them directly responsible for the impact of their actions, whereas the followers - the congregation - receive mitigation.

Relationship with the tzitzit passage

The reference to the leaders as the 'eyes of the congregation' is also notable for its touchpoint with the spies who led people astray based on what their 'eyes' saw:

וּרְאִיתֶם אֶת־הָאָרֶץ מַה־הִוא וְאֶת־הָעָם הַיֹּשֵׁב עָלֶיהָ הֶחָזָק הוּא הֲרָפֶה הַמְעַט הוּא אִם־רָב... וַיַּעֲלוּ וַיָּתֻרוּ אֶת־הָאָרֶץ... וְשָׁם רָאִינוּ אֶת־הַנְּפִילִים בְּנֵי עֲנָק מִן־הַנְּפִלִים וַנְּהִי בְעֵינֵינוּ כַּחֲגָבִים וְכֵן הָיִינוּ בְּעֵינֵיהֶם׃ (במדבר י"ג)

This reference is particularly significant as it connects with the directive at the end of the Parashah (within the tzitzit passage) that one should not be led astray by one's eyes.

וְהָיָה לָכֶם לְצִיצִת וּרְאִיתֶם אֹתוֹ וּזְכַרְתֶּם אֶת־כָּל־מִצְוֺת ה' וַעֲשִׂיתֶם אֹתָם וְלֹא־תָתֻרוּ אַחֲרֵי לְבַבְכֶם וְאַחֲרֵי עֵינֵיכֶם אֲשֶׁר־אַתֶּם זֹנִים אַחֲרֵיהֶם׃ (במדבר ט"ו:לט)

 Much has been written on the connection between the tzitzit passage and the episode of the spies,[17] but less so on the interaction between the tzitzit passage and our passage dealing with the inadvertent communal transgression. Aside from the role of the eyes in both passages, both contain a reference to the 'performance' – or lack thereof - of 'all the mitzvot'. In the entire Torah there is only one other such reference (as part of the Tochakha - Lev. 26:14) with one further reference in the rest of Tanakh (1 Chron. 28:8). In our passage, an offering is brought for the collective straying after the 'eyes of the congregation', whereas in the tzitzit passage the warning is not to stray after one's eyes.

Whilst our passage provides mitigation for the herd-like behaviour of the community (as evidenced in the episode of the spies), this should not be confused with acceptance. The very cause for mitigation highlights the power and potential corruption of social influences. This is where the Mitzvah of tzitzit comes in. The Mitzvah of tzitzit seeks to empower individuals to develop moral fortitude and courage to withstand external pressures. The details of how this is specifically achieved by the tzitzit is beyond the scope of this discussion. For our purposes, we will simply note that the tzitzit serves as a constant presence on the garments of the person which is an expression of a person's identity. The purple-blue of the tekhelet in particular was associated with royalty reminding the wearer of their lofty status as a member of the 'kingdom of priests'. Most dramatically, the tzitzit recalls the tzitz – the most holy of the exclusive garments worn by the Kohen Gadol.[18]

Through the continuous reminder provided by the tzitzit of the individual's noble standing before God, everyone is enjoined to exercise their personal autonomy and not blindly follow the 'eyes' of the leaders and the always-fickle zeitgeist.[19]

Why a he-goat?

Perhaps this also explains the particular form of the offering in our passage which differs from the bull offering of the Vayikra passage. The animal used as a 'sin' offering in our passage is a he-goat which in Hebrew is a seir-izzim. The word עז means bold which characterises the behaviour of a goat. Goats have a curious and bold nature (especially adult male goats) exemplified by their tendency to climb and explore. This is marked contrast to a sheep, who tend to be more timid and flock-oriented.

This difference in behavior makes goats natural leaders in a mixed herd. I found this out for myself when I participated in a corporate event at Ne'ot Kedumim where one of the tasks required us to move a mixture of sheep and goats from location A to B. The key to the successful completion of the task, we soon realised, was to attract the goats and then the sheep would follow.

The Talmud also utilises the goat-leader metaphor in noting that when God is angry at the herd, he blinds the goats:

מַאי מַשְׁכּוּכִית?...רַבִּי יַעֲקֹב אוֹמֵר: עִיזָּא דְּאָזְלָא בְּרֵישׁ עֶדְרָא – כְּדִדְרַשׁ הַהוּא גָּלִילָאָה עֲלֵיהּ דְּרַב חִסְדָּא: כַּד רָגֵיז רָעֲיָא עַל עָנָא, עָבֵיד לְנַגָּדָא סַמְוָתָא. (בבלי בבא קמא נב.)

 The appropriate offering in our passage is therefore the se’ir izzim. But here too there may be yet another allusion to the failure of the spies whose objection to entering the land boiled down to the words:

אֶפֶס כִּי־עַז הָעָם (במדבר י"ג:כח)

In this dramatic turn in their speech, the spies identified the very attribute they themselves were lacking. Physical and spiritual life in the land necessitates courage and fortitude. The nation will be ready to enter only once the likes of Pinchas emerge from the new generation – someone who can boldly stand up to evil and moral decay even whilst the actual leaders are immobilised.

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[1] Although 'sin' offering is not the correct translation of Chatat (which has a wider meaning), I have used it here specifically to describe the scenarios where the Chatat is brought as a result of a sin.

[2] Traditionally this is understood to specifically refer to the Sanhedrin who were the ultimate legal authority. I will assume in this article the term refers to leadership in a broader sense. Interestingly, the proofs from the Midrash Halakha (and most of the classic commentators) focus on the opening part of the verse - kol adat yisra'el – which is interpreted as a strand of leadership (i.e. the Sanhedrin) rather than the community at large. See commentary of R' David Zvi Hoffman for an attempted defence of this interpretation. To me it seems that the main support for equating eyes with leadership comes from the Chovav passage as discussed above. For reasons discussed later, the wider context also suggests that the question of leadership is central to our passage.

[3] Regarding the Vayikra passage, Shadal notes:

כל עדת ישראל: כמשמעו, כל הקהל; וזה אמנם לא יהיה רק בשגגת המנהיגים והשופטים, אבל הכתוב לא הזכיר הסנהדרין ולא הזכיר כלל הוראת ב"ד, ולפי הפשט אחד הוא שתהיה השגגה בעבור הוראת ב"ד, או הוראת הכהן הגדול או המלך, או שתהיה ללא מורֶה.

Regarding the Bamidbar passage, the NJPS translates as follows: 'if this was done unwittingly, through the inadvertence of the community'. In doing so, they have effectively ignored the word me-einei.

[4] Rashi and Ramban seem to differ as to the main motivation for Chazal's interpolation of idolatry into the passage.

[5] The Talmud (TB Horiyot 8a) transfers laws from one passage to the other by utilising a gezerah shavah based on the common denominator of me-einei.

[6] Interestingly the Rambam groups three out of the four Chatat categories of the Vayikra passage as one Mitzvah (#69) and only counts the case of the par he'elem davar separately. However, the process for offering the Chatat (as distinct from the requirement to bring one) is counted as one Mitzvah for all the variations (see #64).

[7] Characteristically, the Ramban does not consider his peshat explanation and that of the Midrash Halakha to be mutually exclusive.

[8] Link to article here

[9] R' Bin Nun applies this category to non-religious Jews of our time which he argues is more accurate and preferable (emotionally and halakhically) to the frequently applied tinok she-nishba (which the Ramban also references here).

[10] The Netziv, without diverging from Chazal's interpretation, similarly noted the herd mentality as the central motif of our passage:

ונסלח לכל עדת בני ישראל וגו׳ כי לכל העם בשגגה. שאינו דומה יחיד העובד ע״ז דאז ודאי יש לחקור אם היה בשוגג ומתכפר בקרבן או במזיד. משא״כ כל העם השאטים אחרי מנהליהם מסתמא רוב העם בשגגה. דגופא בתר רישא אזיל. והכל הולך אחר הרוב ורובו ככולו. וזהו שמסיים הכתוב כי לכל העם בשגגה. זהו פשט המקרא. והדרשה בספרי ע״ז תדרש: (העמק דבר, ט:ו:כו)

[11] The Rambam references the brazen sinner (one who acts be'yad ramah) in a number of places but always in the context of an individual.

[12] See R' Michael Abraham's critique here. See response by R' Bin Nun here.   

[13] See the notes of R' Chavel on the Ramban citing the "Dvirei Sha'ul" of R' Yosef Sha'ul Nathansohn (1808–1875) who makes this argument. If this were correct, it would place the Ramban at odds with the Rambam's apparent view that "nebech apikorus is oich an apikorus".

[14] Another point to note is that when the Ramban refers to the historical precedents, he doesn't bother to determine the particular weltanschauung which led to the people abandoning the Torah.

[15] Even if we have read too much into the Ramban, I would like to submit this as peshat of our passage.

[16] We can perhaps explain another seeming anomaly. For some reason the instruction in our passage is embedded in the same speech as the law of Challah. The law of Challah is clearly located here since it relates to the entry into the land. This perhaps hints that the question of entry into the land also forms the backdrop to our passage.

[17] See Jacob Milgrom, The JPS Torah Commentary: Numbers (Philadelphia: Jewish Publication Society, 1990) pp. 410-414. 

[18] Engraved on the tzitz of the Kohen Gadol were the words 'kodesh la-shem' which with the function of the tzitzit: 've-he-yitem kedoshim l'elokeikhem'. Both garments also had a tekhelet cord attached. Another commonality with the priesthood in general is that both the garments of the priests and the tzitzit contain, or may contain, an otherwise prohibited combination of wool and linen. In the case of the priestly garments this is explicit, in the case of tzitzit it is implicit (see TB Menachot 39b).

[19] There is of course a danger that this mindset may lead to anarchy. It is not coincidental that the very next section in the Torah presents the episode of Korach who argued against the leadership and priestly hierarchy on the basis that 'all the congregation is holy', a proposition which certainly resonates with the tzitzit passage (see Midrash Tanchuma, Korach 4).