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Yeshivat Har Etzion

PARASHAT DEVARIM

By Rav David Silverberg

            Sefer Devarim records Moshe's addresses to Benei Yisrael shortly before his death.  The Ramban, in his introduction to this sefer, addresses the question of why certain mitzvot are repeated in Sefer Devarim, and why others are introduced here for the first time.  He explains that Moshe repeated certain mitzvot for the purpose of clarification.  And as for the mitzvot that Moshe introduces in this sefer for the first time, the Ramban claims that he had certainly heard these mitzvot from God either while atop Mount Sinai, or in the Mishkan during the first year after its construction.  The Ramban speculates that Moshe had not presented these laws to the people earlier either because these laws apply only in Eretz Yisrael, or because they do not apply frequently, so he did not feel compelled to convey them to the people until before his death.

            The Radbaz, in one of his responsa (vol. 6, 2,143), strongly objects to the Ramban's theory, and advances three main arguments against this explanation.  Firstly, he asked, Moshe would not have been licensed to delay his transmission of these laws to Benei Yisrael for so many years.  The Radbaz makes reference to the prohibition of kovesh nevu'ato – that a prophet may not withhold prophecy that he was instructed to convey to the people.  Secondly, the Radbaz contends, several mitzvot mentioned earlier, in Sefer Vayikra, take effect only in Eretz Yisrael.  Most notably, towards the end of Sefer Vayikra the Torah presents the laws of shemita and yovel, which clearly apply only in the Land of Israel, and had no practical relevance in the wilderness.  If Moshe conveyed these mitzvot to the people earlier, then there is no reason why he should not have taught them as well the other laws that would take effect only once they cross the Jordan River.  Finally, the Radbaz challenges the Ramban's bold assertion that the laws introduced for the first time in Sefer Devarim either did not take effect until Benei Yisrael entered the Land, or were not relevant on a regular basis.  The Radbaz points specifically to the mitzva of birkat ha-mazon, which is not mentioned in the Torah until Sefer Devarim, even though it quite obviously applies each day.  He mentions as well the laws concerning divorce, which would seem to have borne practical relevance even during Benei Yisrael's sojourn in the wilderness, and yet are introduced only in Sefer Devarim.

The Radbaz therefore argues that the mitzvot introduced for the first time in Sefer Devarim were not conveyed to Moshe until this final year of his life.  Moshe had not taught these laws to the people earlier for the simple reason that he had yet to learn of these precepts himself.  And one cannot ask, the Radbaz adds, why God chose to present these laws only now, because such a question belongs to the realm of divine wisdom inaccessible to the human mind.

The Keli Chemda adds yet another difficulty concerning the Ramban's analysis.  In his critique to the Rambam's Sefer Ha-mitzvot (lo ta'aseh 194), the Ramban disputes the Rambam's designation of the prohibition of yayin nesekh – deriving benefit from wine that had been used in pagan libation ritual – as an independent Torah prohibition.  The Rambam had attempted to draw proof to this position from a comment of the Sifrei that this prohibition had not yet been in effect during the incident of Ba'al Pe'or, when Moavite women succeeded in seducing members of Benei Yisrael by having them drink wine.  The Ramban argues that to the contrary, this comment proves that yayin nesekh does not constitute a Torah prohibition.  All the mitzvot, the Ramban writes, had already been taught earlier, at Sinai; if yayin nesekh was not introduced before the incident of Ba'al Pe'or, then it must not constitute a Torah prohibition.  Seemingly, the Keli Chemda observes, the Ramban himself held that all the Torah's laws had been conveyed during the first year in the wilderness – in direct contradistinction to his comments here in his introduction to Sefer Devarim.

Indeed, the Ramban's comments here in his introduction to Devarim appear, at least at first glance, difficult to understand.

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            In Parashat Devarim Moshe recounts the incident of chet ha-meraglim, the sin of the scouts, and he recalls, "I took from among you twelve men, one man per tribe" (1:23).  Rashi, citing the Sifrei, comments, "This teaches that the tribe of Levi was not among them."  The emphasis on the fact that the twelve scouts came from twelve different tribes serves as an indication that Levi was not represented in the delegation of meraglim.

            The obvious question arises, why must the Sifrei extract this information from this verse?  In the original account of chet ha-meraglim in Parashat Shelach, the Torah lists all twelve scouts and the tribes they represented, and the tribe of Levi does not appear in that list.  What, then, does Rashi mean when he writes that this verse in Parashat Devarim "teaches that the tribe of Levi was not among them"?  Rav Eliyahu Mizrachi raises this question and leaves it unanswered.

            The work Ke-motzei Shalal Rav cites an explanation of Rashi's comment from Rav Chanokh of Arentroye.   In the immediately preceding verse, Moshe recalled the nation's request that he dispatch scouts to Canaan, and, according to Chazal's reading of this account (cited by Rashi to 1:22), Moshe specifically emphasizes the inappropriate manner in which the nation brought him their request.  They approached him frantically, in disorderly fashion, each one trying to shove the other to the side to speak personally with Moshe, rather than assigning a proper representative leadership to submit the nation's request.  He criticized the people not only for the result of the scout delegation, but also for the request itself, as its manner of presentation reflected the inappropriate attitude that motivated it.  Moshe then recalls, "I took from among you twelve men…"  According to Rab Chanokh, Rashi sought to explain Moshe's emphasis on the fact that he chose twelve men "from among you."  Rashi understood this to mean that Moshe chose the scouts specifically from among those who approached him to demand a scouting mission.  Now, as we know from Parashat Shelach, no scout was chosen from the tribe of Levi; it thus follows that the tribe of Levi had not joined the other tribes in descending upon Moshe to demand that he dispatch scouts.  Rashi thus comments, "This teaches that the tribe of Levi was not among them" – meaning, among those who boisterously gathered around Moshe to demand a delegation of spies.

The Maharal of Prague, in his Gur Aryeh, explains similarly, and elaborates a bit further on the significance of this point.  Moshe sought to prove to the people that their request for scouts was itself an indication of mistrust in God, and was not driven by an innocent desire to wage a more effective war against the Canaanites.  The tribe of Levi was no less interested in a successful campaign against Canaan than the rest of the nation, and yet they felt no need to dispatch scouts, relying instead on God's promise of a victorious campaign.  The people should have followed this example and trusted the Almighty's guarantees.  Had they approached the conquest of Eretz Yisrael from the same perspective as the Levi'im, as a campaign led by God, they would not have demanded a delegation of scouts, and the debacle of chet ha-meraglim could have been avoided.

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            In the closing section of Parashat Devarim, Moshe reviews Benei Yisrael's recent conquest of Eiver Ha-yarden, the region east of the Jordan River, which they seized from Sichon, king of the Emorites, and Og, ruler of the northern Bashan region.  We encounter in Moshe's account some background information that does not appear in the parallel narrative in Sefer Bamidbar (end of Parashat Chukat).  In Bamidbar, the capture of Eiver Ha-yarden appears to have occurred incidentally, as a natural result of a defensive war that Benei Yisrael were never interested in waging.  After Moshe sent a delegation to request peaceful passage through the Emorites' land, Sichon launched an unprovoked offensive against Benei Yisrael, and they responded by defeating the Emorites and seizing their territory.  Here in Parashat Devarim, we learn that God had already informed Moshe before Sichon's attack that Benei Yisrael were to begin their conquest of Canaan by capturing this region.  The conquest was not incidental, but rather a pre-intentioned move that marked the beginning of the capture of Eretz Yisrael.

            Among the questions discussed by the commentators regarding this topic is the purpose underlying Moshe's initial offer of peace to Sichon.  If, as we read in this parasha, Benei Yisrael were from the outset to wage war against the Emorites and capture their land, then why did Moshe first ask Sichon to allow Benei Yisrael to peacefully pass through his country?  Why did he not simply initiate warfare?

            Rashi implicitly addresses this question in his discussion of the term midbar kedeimot (literally, "the wilderness of antiquity"), which Moshe mentions as the site from where he dispatched the messengers to Sichon.  According to Rashi, midbar kedeimot is not actually a geographic reference, but rather an allusion to an earlier event on the basis of which Moshe understood that he should first make an offer of peace, despite his knowing that Sichon would refuse and initiate conflict.  Rashi first points to Matan Torah, before which, as the Gemara tells in Masekhet Avoda Zara (2b), God offered the Torah to every other people, whom He knew from the outset would have no interest in accepting it.  Secondly, Rashi suggests, Moshe perhaps learned from his experiences back in Egypt, when God repeatedly sent him to Pharaoh to peacefully demand the slaves' release, knowing that Pharaoh would refuse and it would be necessary to bring deadly plagues upon the country.  Moshe thus decided that in this instance, too, he should first approach Sichon peacefully, knowing full well that the Emorite monarch would respond with war.

            Though Rashi does not elaborate, these two precedents – Matan Torah and Moshe's demands of Pharaoh – seem to differ fundamentally from one another in terms of the purpose achieved by the inherently futile gesture.  In the case of Matan Torah, it is generally assumed that God first offered the Torah to the other nations of the world so that they could never make the claim that they would have accepted it had they been given the chance.  (This seems to be the implication of the Gemara's discussion in Masekhet Avoda Zara.)  Thus, if that was the precedent to which Moshe looked before dispatching a delegation to Sichon, it stands to reason that here, too, Moshe wanted to preclude the accusation that Benei Yisrael instigated hostilities against an otherwise peaceful nation.  By first extending an offer of peace, Moshe ensured that Sichon would be the first to attack and thus very clearly bear the responsibility for his defeat.

            In Pharaoh's case, however, the motivation behind Moshe's repeated visits and demands to Pharaoh is less clear.  The straightforward reading of the relevant sections in Sefer Shemot would suggest that God repeatedly sent Moshe to Pharaoh, rather than instantly destroying the kingdom, in order to demonstrate His power, as it necessitated bringing a supernatural plague upon Pharaoh with each refusal to comply.  If so, then this could hardly set a precedent for Moshe's gesture to Sichon, since even with this gesture Benei Yisrael dealt but a single, instantaneous blow that destroyed the Emorite kingdom.  God's power was no more manifest as a result of the offer of peace than it would have been otherwise.  But the association between these two instances – the demands to Pharaoh and the gesture to Sichon – becomes clear in light of the Rambam's famous comments in Hilkhot Teshuva (6:3) concerning the doctrine of free will.  The Rambam establishes that it is possible for a sinner to reach a point of iniquity where God punishes him by denying him free will.  Interestingly enough, two of the examples mentioned by the Rambam are Pharaoh and Sichon.  Regarding both, the Torah says that God "hardened" the given monarch's heart, suggesting divine interference in the human decision-making process.  God denied Pharaoh the ability to acquiesce to Moshe's demands, and God compelled Sichon to initiate war against Benei Yisrael.  The Rambam then asks why God repeatedly sent Moshe to Pharaoh once He already hardened his heart, and he explains that this was intended specifically to demonstrate this very concept – that God will, at times, deny a wicked person his free will as punishment for his grievous crimes.  God wanted the world to see Pharaoh irrationally refusing Moshe's demands, which could be explained only as God's intervention in his rational faculties.

            If so, then this may be Rashi's intent in claiming that Moshe looked to his experiences in Egypt as a precedent for his handling of the situation with Sichon.  He presumed that in the case of Sichon, too, God would want him to first make a peaceful offer and have Sichon inexplicably initiate hostilities in response, thereby demonstrating to the world this phenomenon of a "hardened heart," that God will, in rare instances, deny an evil person the ability to repent.

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            Towards the beginning of Parashat Devarim, Moshe recalls his appointment of a network of judges to help him in attending to the nation's judicial needs.  Moshe had until that point arbitrated each civil case personally, but he finally exclaimed, "I cannot handle you alone" (1:9).  Rashi asks, "Is it possible that Moshe was unable to judge Israel?"  Considering Moshe's many other feats, including leading Benei Yisrael from Egyptian bondage and receiving the Torah from God atop Mount Sinai, adjudicating the nation's legal disputes hardly seems too daunting a task.  Rashi explains (based on the Sifrei) that Moshe's concern was not time constraints or the practical pressures involved, but rather the accountability that this job entailed.  God holds a Jewish judge accountable for money that is mistakenly awarded to an undeserving litigant.  Rashi adds that if a judge issues an incorrect ruling in a monetary dispute, he is held accountable as if it were a mistaken sentence of execution ("im chiyavti mamon she-lo ke-din, nefashot ani nitba").  Moshe felt unable to bear this burden of responsibility, and so he decided to enlist the help of a large team of judges.

            Two obvious questions immediately arise from Rashi's comments.  Firstly, it is unclear how the appointment of a team of judges served to ease the pressure of judicial accountability.  Even after the appointment of lower-level judges, Moshe remained the arbiter for more difficult cases (1:17).  If it was not the time-contrasts, but rather the frightening accountability, that concerned Moshe, the appointment of a judicial network does not, at first glance, appear to address this concern.  Secondly, the Gemara explicitly states in Masekhet Sanhedrin (6b) that a prospective judge should not say, "Why should I get myself into this trouble?" given the enormous burden of responsibility that rests on a judge's shoulders.  After all, the Gemara remarks, "Ein la-dayan ela ma she-einav ro'ot" – literally, "A judge has only what his eyes see."  Meaning, God does not demand of a judge more than what he is capable of doing.  So long as he studies the case fairly and thoroughly, his decision is legitimate even if it is later discovered to be incorrect.  Seemingly, then, Moshe had nothing to fear in serving as the nation's judge.  Even if he did issue a mistaken ruling, so long as he assessed the data with objectivity and sound reasoning, he has satisfactorily executed his duties and will not be held accountable for his mistake.

            Rav Avraham Yitzchak Sorotzkin, in his Rinat Yitzchak, answers these questions in light of Rabbenu Yona's remarks in his commentary to the first Mishna in Masekhet Avot.  Rabbenu Yona writes that if a judge did not thoroughly study the case brought before him and issued a ruling without investing sufficient time and thought, he is, indeed, liable for punishment for a mistaken ruling.  Rabbenu Yona emphasizes that such a judge is looked upon not as an inadvertent sinner, but rather as a poshei'a – an intentional sinner.  Even though he issued what seemed to him a fair, objective opinion, his mistake is inexcusable given the inadequate attention he gave to the case.  This easily explains Moshe's concern as he single-handedly tended to the people's judicial needs.  This pressured situation gave rise to the possibility that Moshe would be unable to properly concentrate and give thought to each and every case that came his way.  Under such circumstances, as Rabbenu Yona asserts, Moshe would, indeed, be held accountable for an erroneous decision.  Even though generally we assure a judge that he has "only what his eyes see," and that he cannot be expected to get it right every time, this dispensation does not apply to a judge who rules incorrectly as the result of inadequate focus and attention.

            Thus, Moshe sought to alleviate his plight by assigning a team of magistrates to work alongside him.  This would ease the burden and allow him the time and peace of mind he needed to afford the required investment of thought and concentration into the cases that would come before him.

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            A considerable portion of Parashat Devarim is devoted to the incident of chet ha-meraglim, the sin of the scouts.  The Gemara in Masekhet Arakhin (15a) comments, "Come, look at the immense power of lashon ha-ra [negative speech about other people] – from where?  From the scouts: if this is what happens when one speaks about wood and stone, all the more so [will disaster occur] when one speaks libelously about his fellow."  According to the Gemara, the scouts' negative report about Eretz Yisrael constitutes a form of lashon ha-ra, inappropriate talk about the Land of Israel.

            The question immediately arises, when did the scouts speak lashon ha-ra about the land?  They doubted Benei Yisrael's ability to oust the mighty Canaanite nations, which bespoke a lack of faith in God's promise.  But how does this amount to "lashon ha-ra" about the land?

            It is commonly assumed that the scouts spoke lashon ha-ra when they described the Land of Israel as "eretz okhelet yosheveha" – "a land that consumes its inhabitants" (Bamidbar 13:32), falsely "accusing" the land of causing its residents an early death.  This indeed corresponds to classic motzi shem ra (libel), where one spreads false accusations about another person.

            Interestingly, however, Rabbenu Gershom, in his commentary to Masekhet Arakhin, cites two verses as expressing the scouts' "negative speech" about Eretz Yisrael: the description of the land as an eretz okhelet yosheveha, and a verse in Parashat Devarim (1:28), where the scouts describe the "large cities that are fortified to the heavens."  According to Rabbenu Gershom, it seems, this depiction of the Canaanite cities also constituted lashon ha-ra about the Land of Israel.

            Rav David Mandelbaum, in his Pardes Yosef He-chadash, raises the question of where in this clause the scouts speak disparagingly about Eretz Yisrael.  This depiction of the cities was – seemingly – intended to underscore the perceived impossibility of capturing the land.  It says nothing about the intrinsic quality of the land, the benefits of living there, the agricultural opportunities it provides, its climate, or any other feature of Eretz Yisrael itself.  It simply describes – albeit in exaggerated terms – the seemingly impenetrable defense systems developed by the Canaanites, which – from the scouts' mistaken perspective – rendered conquest hopeless.

            We can only speculate as to what Rabbenu Gershom had in mind when he included this verse as a source for the scouts' lashon ha-ra about the Land of Israel.  It is possible that he extended the definition of motzi shem ra to any false information conveyed about another individual, even if the information is neutral and not offensive.  The scouts' description of the Canaanite cities as "fortified to the heavens" was clearly an inaccurate exaggeration.  Although it did not reflect any negative intrinsic quality of the land, it was nevertheless false information.  Rabbenu Gershom would perhaps define motzi shem ra against a person, too, as including even false information that is not inherently insulting to the individual spoken of.

More likely, perhaps, Rabbenu Gershom understood this verse differently, as a description of not only the Canaanites' defense systems, but also the geopolitical climate in the region that necessitated such systems.  The scouts were in essence saying, "Look how the Canaanites have to live – in cities with walls extending to the heavens!"  They perhaps concluded upon seeing the elaborate fortifications that this is what life in Canaan is like: a life of constant fear of attack, and incessant conflict between opposing factions, tribes or nations.  This would, indeed, amount to a form of motzi shem ra about the Land of Israel.

In any event, these two verses cited by Rabbenu Gershom share a common theme that may very well add some insight into the prohibitions of lashon ha-ra and slander.  Rashi, in his commentary to Parashat Shelach (Bamidbar 13:32), writes (citing the Gemara) that the scouts described the land as one that "consumes its inhabitants" because wherever they went in Canaan they saw people attending funerals.  God had caused many people to die during the scouts' excursion to divert the natives' attention away from the foreign spies.  But the scouts misinterpreted the deaths as indicative of the land's deadly quality.  Similarly, Rashi comments (Bamidbar 13:19) that Moshe asked the scouts to report on whether the Canaanites lived in open or fortified cities to determine whether or not they live in fear of an Israelite attack.  Fortification would signal fear on the Canaanites' part, and should thus serve as a source of encouragement and reassurance for Benei Yisrael.  The scouts, however, saw the giant fortresses and concluded that Canaan was an existentially war-torn country, where people must live in fear and behind fortified walls.  In both these verses, then, the scouts misinterpret a positive quality of the land as reflecting an intrinsic flaw.

Lashon ha-ra often works the same way.  People spread disparaging rumors about their peers because they misinterpret their behavior or speech, because they look to criticize and judge others negatively.  For this reason, perhaps, the Gemara points to the incident of chet ha-meraglim as the prototype of lashon ha-ra, which is generally the result of an inability to judge other people favorably, and a tendency to interpret everything they do as reflective of an intrinsic flaw in their character.

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            In Parashat Devarim, Moshe recalls the frustration he encountered trying to lead the nation single-handedly, to the point where he exclaimed, "How can I bear alone your trouble, your burden and your quarreling?" (1:12).  Rashi, based on the Sifrei, explains the word masa'akhem (which we translated as "your burden") as follows:

This teaches that they were apikorsim: If Moshe left [his home] early, they would say, "Why did the son of Amram leave?  Perhaps things are not peaceful in his home."  If he was delayed in leaving, they would say, "Why did the son of Amram not leave…"

According to Rashi, masa'akhem refers to the unfair scrutiny to which the people subjected their leader, how they would seize every opportunity to arrive at speculative, accusatory conclusions about his personal life and commitment to his constituents.

            Curiously, Rashi introduces this commentary by describing the people with the word apikorsim.  Generally, this word refers to heresy or agnosticism, theological opposition to the fundamental beliefs of the Torah.  As unfairly and insensitively as the people treated their leader, this treatment seemingly reflects poorly only on their characters, not on their ideology.  Why would they be deserving of the epithet apikorsim for their excessive scrutiny of Moshe?

            Before answering this question, let us first examine the etymology of the word apikorus.  The Siftei Chakhamim, commenting on Rashi's remarks, understands the word apikorus as a contraction of the words apik resen, or "removal of restraint."  The term denotes the refusal to subject oneself to restrictions on conduct, the decision to break free of all limitations and act freely.  Others claim that the word evolves from the name of the famous Greek philosopher Epicurus, who founded a school of thought (Epicureanism) that saw pleasure as the ultimate purpose in life.  Either way, the term apikorus refers to indulgence and lack of restraint.  Indeed, Ibn Ezra (21:20) describes the ben sorer u-moreh (the wayward son, whom the Torah sentences to execution) as "like an apikorus, in that he seeks nothing else in this world other than indulging in all types of food and drink."

            If so, then why was this term adopted as a description of a person who holds heretical views?

            Rav Moshe Sternbuch, in his work Ta'am Va-da'at, suggests that this usage of the word apikorus might stem from the reality that heresy often results not from objective ideological analysis, but rather from a desire to shake oneself free from the dictates of the Torah.  In many instances (though certainly not all), specific challenges to Jewish theology are preceded by a general distaste for, and disinterest in, the lifestyle it demands.  Heresy therefore became known as apikorsut – an effort to free oneself from the obligations and restrictions of Torah law by conceiving rational arguments against the Jewish faith.

            Similarly, Rav Sternbuch suggests, the accusations against Moshe resulted from the people's desire of apik resen, to free themselves from all restrictions.  The most convenient way of ignoring a rabbi's instructions and halakhic rulings is to undermine his stature through allegations of one kind or another.  According to Rashi, Moshe saw the rumors that the people spread about him as their attempt to undermine his credentials and thereby absolve themselves of the need to obey his instructions.

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            Towards the beginning of Parashat Devarim, Moshe recalls his appointment of a team of judges to assist him in tending to the nation's judicial needs.  He instructed these judges to preside over cases "between a man and his fellow and his foreigner" (1:16).  Rashi cites two explanations for the unusual term "geiro" in this verse (literally, "his foreigner"), the first of which interprets this word to mean "his litigant."  According to this approach, the word ger in this context evolves from the verb a.g.r., which generally means "amassing" or "piling."  It thus refers to a litigant, who "piles" arguments and evidence against his fellow in an effort to prove the veracity of his claim.

            Why would the Torah employ this unusual term for "litigant" in this context?

            Rav Moshe Sternbuch, in his Ta'am Va-da'at, suggests that the term geiro in this verse, which records Moshe's admonitions to the newly-appointed magistrates, subtly conveys to them a critical message regarding the process of judicial decision-making.  A judge must ensure not to fall prey to the rhetorical tactics employed by the litigants or their legal representatives.  He must be capable of distinguishing between established fact and speculative presumptions, between objective data and persuasive manipulation of that data.  Moshe here warns the new appointees to judge each individual fairly against geiro, against a litigant who excels in the art of argumentation and rhetoric.  The judge must look past the external trappings and carefully sort through the objective data before arriving at his decision.

            This concept can easily be applied to the "judicial" processes that each individual conducts throughout his life.  When we face decisions of any kind, we can easily be misled by a variety of tactics employed by "persuaders."  Advertisers, salesmen, columnists and public officials seek to sell their "wares" through many different media, whether it be through elaborate advertisements, catchy slogans, flowery language, forceful intonation, or misleading data.  Whenever we are called upon to "judge," to decide on a given matter, we must ensure to look behind the external trappings and assess only the relevant information, so that we make a sound, educated decision, without being misled by those who "pile" on us irrelevant information for the purpose of persuasion.