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Yesterday we discussed the fascinating topic of "eidim zomemim," the procedure by which the court catches and punishes false witnesses. As we saw, a court generally dismisses a case when two sets of witnesses directly contradict one another. It cannot believe one set over another. When, however, two witnesses testify that witnesses in a given case were far away from the scene of the alleged crime and thus could not have seen what happened, the court accepts this testimony of the second group. On this basis, it dismisses the original case and punishes the first set of witnesses. Yesterday we looked at one explanation as to why here, unlike all other situations, the court believes the second group of witnesses over the first. Today we will see three others.

The Ran, cited by the Abarbanel, suggests that an element of deterrence exists that prevents witnesses from falsely disqualifying the testimony of others. Original witnesses who testify that, for example, Bob stole money from Jane, have little to fear; how can others deny this claim? Such false testimony is hard to contradict. However, falsely disqualifying the testimony of others is much trickier; the first set of witnesses, if they speak the truth, can easily bring other witnesses to their having been present at the scene of the crime. Therefore, reasons the Ran, it is less likely for witnesses to falsely disqualify the original testimony than for the original witnesses to lie. We therefore believe the second group over the first. (Rav David Tzvi Hoffman rejects this explanation; see if you can find the problem with this approach on your own.)

Rav David Tzvi Hoffman offers a different suggestion. The most likely motive behind falsely invalidating witnesses is the desire to exonerate the defendant against whom they testify. But, as Rav Hoffman notes, testifying that the witnesses were not present at the scene of the alleged crime does not accomplish this goal. Other witnesses can come just as easily as the first and accuse the defendant! If the second group really sought to falsely testify in order to save the defendant, they should have claimed that he, the defendant, was with them far away from the scene of the crime at the time it supposedly occurred. This would more effectively achieve their goal than would testifying about the witnesses' inability to testify. We therefore have reason to assume that this second group of witnesses speak the truth.

A completely different and particularly creative approach is offered by Rav Shemuel Gantzfried, author of the Kitzur Shulchan Arukh, in his work, "Apiryon." Our earlier assertion that the court dismisses a case regarding which it heard contradictory testimonies from two groups of witnesses is not entirely accurate. In truth, the court does actually issue a ruling of sorts: to maintain the status quo. As the two sets of witnesses neutralize each other, the court can do nothing but keep the current condition as is. Now in the context of false testimony we find a rather counterintuitive halakha: the false witnesses are punished only if they are testified against before the original defendant is punished ("ka'asher zamam ve-lo ka'asher asa"). In a murder trial, for example, if the false, accusing witnesses are found to have lied only after the defendant has been executed, the court does not punish them. The second witnesses must disqualify the first group before the defendant's execution in order for the false witnesses to receive their punishment. Rav Gantzfried explains this halakha based on the status quo principle. So long as the defendant has yet to be punished, the debate between the two sets of witnesses surrounds him - the defendant. The status quo principle teaches that every man is assumed innocent until proven guilty. Accordingly, the court rules in favor of the defendant, a ruling which de facto renders the original testimony false. Understandably, then, the court punishes the first witnesses. If, however, the defendant has already received his punishment, his case is closed; the debate between the two sets of witnesses now surrounds only the issue of whether or not the first set spoke the truth. In this case, too, the court adopts the status quo, and they assume the innocence of the first set. (Find the flaw in this line of reasoning, as well.)

We close our discussion with Rav Yehuda Nachshoni's concluding remarks to his comprehensive survey of the various opinions in this regard: "The matter still requires explanation and elucidation."

*****

The concluding verses of Parashat Ki-Teitzei issue the command to always remember Amalek's assault on Benei Yisrael shortly after their departure from Egypt. Moshe employs a somewhat ambiguous term to describe Amalek's aggression: "asher karekha ba-derekh" (25:18). Rashi offers three interpretations as to the meaning of this phrase. First, he suggests that "karekha" relates to the term "mikreh," or happenstance. The verse would thus mean that Amalek "chanced upon you" along the way. Secondly, Rashi associates the word with "keri," impurity, indicating that Amalek performed abominable activities with their captives from Benei Yisrael. Finally, Rashi identifies "karekha" as a derivative of the word "kor," cold. He explains that before Amalek's attack, Benei Yisrael, the fear of whom had overcome the other peoples, resembled a scorching pool of water into which no one would dare enter. Amalek "jumped" into the water, burning themselves but "cooling off" Benei Yisrael, effectively inviting other nations to oppress them.

Reb Yerucham Lebovitz of Mir applies this "cooling off" phenomenon to all areas of life, where it often takes the form of taboo breaking. Violations of basic social and ethical norms, when first committed, appear abhorrent and vulgar and often invite widespread and harsh condemnation. However, no matter how unanimous the criticism, the damage is done: the barrier blocking the way before general acceptance of this conduct has lost a layer. To whatever extent, the taboo has been at least diluted; the next time it occurs, the shock will be substantially more mild, and, eventually, it could potentially earn acceptance. The first step of the unheard of's road to approval is becoming heard of.

In this context, Reb Yerucham cites the Rambam's comments regarding a person's choice of place of residence (Hilkhot Dei'ot, 6): "The nature of man's being is to be attracted in his thoughts and deeds to his comrades and friends… Therefore, a person must attach himself to righteous people and always reside near sages… and distance himself from the wicked… If one was in a country whose customs were bad and its people did not follow the proper path… he should live by himself in solitude… "

Over the course of time, regular exposure to inappropriate behavior chips away at our walls of conscience and brings us to a degree of resignation. The "Amalek syndrome" warns us to expose ourselves to goodness and piety, to people who will help us raise our ethical and religious standards, rather than lower them.

*****

Among the many mitzvot presented in Parashat Ki-Teitzei is that of "shilu'ach ha-kan," sending away the mother bird when taking her eggs or chicks. On the surface, it appears that this mitzva reflects the Torah's compassion towards all creatures, or at least the need to engender a degree of sensitivity within ourselves. However, the mishna in Masekhet Berakhot (5:3) implies that we must approach this mitzva (and, presumably, all mitzvot) as objective decrees of the Almighty and may not speculate as to their underlying rationale. The mishna there says that we must silence anyone who asks God to show us compassion the way He does to the mother bird. Evidently, we may not invoke the institution of "shilu'ach ha-kan" as an example of divine mercy, but rather view it as nothing more or lessthan a decree of the Almighty.

This mishna notwithstanding, the Rambam, in his Moreh Nevukhim (3:48), upholds the explanation of this mitzva as based on God's compassion towards all creatures. He adds that we must learn from this mitzva just how sensitive we must be toward the feelings of others. If the Almighty urged us to exercise care with the feelings of birds, then certainly we must treat other people with the utmost sensitivity. The Rambam mentions the aforementioned mishna and writes that this represents the dissenting view among the tanna'im, that we may not look for the reasons behind mitzvot. The accepted position, the Rambam argues, allows and encourages the search for the meaning behind God's laws.

The Rambam's view becomes far less clear in light of his comments in his Mishneh Torah, in his discussion of the laws of prayer (Hilkhot Tefila 9:7). There he codifies the ruling of the mishna, requiring the silencing of one who invokes this mitzva as an example of God's mercy. The Rambam even explains, "for these mitzvot are decrees of Scripture and not [based on] compassion." How can we reconcile these comments with the Rambam's discussion in Moreh Nevukhim?

A possible answer may arise from a more careful reading of the Rambam's words in Hilkhot Tefila. There he writes, "One who says IN HIS SUPPLICATION, 'The One who had compassion on a bird… ' is silenced." The Rambam speaks specifically of one who speaks this way as part of his prayer. This may suggest a distinction between study and prayer. In Moreh Nevukhim, the Rambam encourages students to contemplate the mitzvot to the best of their ability and seek for the reasons and rationale behind them. Academically, we are authorized and even urged to utilize our intellect and comprehend the divine will. Moreover, the experience of Torah learning is meant to be, on one level, an exercise in arrogance. Chazal often refer to engagement in Torah as "milchamta shel Torah," the "war of Torah," with students and scholars arguing bitterly with one another, each fighting to uphold his view. In the pursuit of truth, an individual must proudly and confidently argue his case during discourse and debate.

Prayer, by contrast, is the ultimate exercise in humility and submission. If while learning we define ourselves by our God-like intellectual faculties, then during prayer we focus on the vast, infinite gap between creature and Creator. We come before the Almighty as a slave begging for compassion from his master, with our egos shattered, our self-esteem vanished, and our eyes lifted longingly to the heavens. Prayer is not the time to claim any degree of understanding of the rationale behind God's mitzvot. It is the time for sheer humility and sense of dependence on the Almighty.

Therefore, if in the classroom we are encouraged to seek, probe, speculate, and employ our God-given intuition and intelligence, during prayer we use only our broken hearts. We may and should look for answers as we study, but we cannot feel so self-assured to introduce those speculations into the context of prayer.

(Taken from an article by Rav Yaakov Filber, based on a passage by Rav Kook zt"l)

*****

Towards the beginning of Parashat Ki-Teitzei we read the striking parasha of "bein sorer u-moreh," the wayward son who is executed by the court. Chazal have transmitted to us through the Oral Law a wide array of detailed, prerequisite conditions for this halakha to apply, effectively rendering this entire institution strictly theoretical. Indeed, the Gemara comments that there has never been nor will ever be a situation of a "bein sorer u-moreh." The Torah nevertheless presented this topic for us to learn and study the important lessons arising from this purely theoretical halakha.

Rashi on our parasha writes - citing from the Gemara - that a "bein sorer u-moreh" is executed "on account of his future." Meaning, the Torah knows that a child who engages in such behavior (as detailed in the Gemara) will grow to be a ruthless criminal and social pariah. It therefore mandated his execution to prevent him from committing even more severe crimes as an adult.

As many commentators have noted (see Maharsha, Sanhedrin 72, citing Rabbi Eliyahu Mizrachi), this concept seems to contradict a basic principle established in Masekhet Rosh Hashana 16, that the Almighty judges the world in its present state. He does not render judgment against individuals or communities based on His knowledge of their future conduct. Everyone enjoys free will and the right to choose between good and evil; God therefore assesses people's behavior only based on their past deeds, not their future actions. Why, then, is the "bein sorer u-moreh" sentenced based solely on his future?

Rav Eliyahu Lopian zt"l suggests an answer by distinguishing between two reasons we would expect future misconduct from someone: inherent qualities and behavioral patterns. Regarding the first, the Almighty does not take one's future conduct into account. All people possess certain qualities (be it nature or nurture) that make them more prone to one type of conduct or another. The Torah's challenge to all of us is to harness our good qualities and overpower our negative characteristics. The presence of one negative tendency or another can in no way impact upon God's judgment at the present, as we are bidden and expected to observe God's laws regardless of our inclinations.

Habituation, however, is a different matter entirely. The parasha of "bein sorer u-moreh" teaches something frightening: it is theoretically possible for someone to reach a point of behavioral pattern that he loses his free will entirely, so much so that his future conduct is predetermined. What more, he is punished based on that predetermination. True, we must recall that such an extreme situation has never and will never take place. But what we are to learn, perhaps, from this theoretical mitzva, writes Rav Lopian, is the very practical principle of habit and routine. Reinforced habits often become so routine that they reach the point of predictability. During the month of Elul, we have the responsibility of breaking habits that require breaking, and committing ourselves to take upon new habits which we hope to keep for many years to come.

*****

Parashat Ki-Teitzei presents the mitzva of "ma'akeh," requiring one to build a security fence around one's roof. The verse reads: "When you build a new house, you shall make a parapet for your roof, and you shall not bring bloodguilt on your house if anyone should fall from it" (22:8). The Sifrei notes that whereas the first clause of the verse requires specifically the construction of a fence around one's roof, the following phrase, "and you shall not bring bloodguilt on your house," seems far more generic. It appears to prohibit maintaining less than acceptable safety standards in one's property in general. Accordingly, the Sifrei claims that this second clause introduces the obligation of placing protective fences around other dangerous areas such as ditches, pits and the like.

Although it turns out that this verse requires the building of fences around all these potentially hazardous locations, the nature of the obligation concerning roofs may differ from that regarding other areas. Several Acharonim have understood the Sifrei as deriving two distinct mitzvot from this verse. "You shall make a parapet for your roof" introduces the obligation of rooftop fences, while "and you shall not bring bloodguilt on your house" relates to the requirement of protecting other dangerous areas. This distinction may yield practical ramifications. Some authorities, including Rav Avraham Danzig in his classic halakhic work, Chayei Adam (15:24), rule that one recites a berakha over the construction of a fence only on his rooftop, not around pits and ditches. As stated, the obligation concerning the latter group originates only from the second clause of the verse: "you shall not bring bloodguilt on your house." Now halakha requires the recitation of a berakha before the performance of mitzvot only when the given act fulfills a "asei," a "positive" commandment. An act performed to avoid violating a "lo ta'aseh," a "negative" commandment (i.e. a prohibition), does not require the recitation of a berakha. Therefore, claim many authorities, we recite a berakha only when building a fence around a rooftop, an obligation presented by the Torah as a "mitzvat asei," but not when protecting other areas, the requirement of which constitutes a "lo ta'aseh."

We should note the view of the Rokei'ach (366), that no berakha is recited upon the construction of a fence around one's roof. Most Acharonim, however, accept the Rambam's view (in Hilkhot Berakhot 11) that this mitzva does, in fact, require a berakha.

Another possible distinction between rooftops and other hazardous locations is raised by the Minchat Chinukh. This difference between the two obligations, one constituting a positive commandment with the other presented as a prohibition, yields the following formulation: on one's rooftop, one must construct a fence; around other areas, he must ensure the presence of a fence. By presenting the requirement in other dangerous locations in the form of a prohibition against "placing bloodguilt," the Torah implies that one must merely see to it that protection is provided. The Minchat Chinukh claims that this gives rise to a very relevant halakhic difference between the two obligations. Regarding a rooftop, one must either personally build the fence or appoint/hire another to do so through the halakhic institution of "shelichut" (the appointment of emissaries). In other areas, no formal appointment is necessary. This conclusion will prove critical in a situation where one hires non-Jewish builders. The halakhot of formal "shelichut" dictate that a gentile cannot serve as one's legal messenger or emissary as far as halakha is concerned. Accordingly, writes the Minchat Chinukh, one who prefers not to personally build his rooftop railing must hire or appoint a fellow Jew to do so. Such a restriction would not apply to fences around ditches and the like, as the requirement in this regard is merely to ensure the presence of a protective railing. It thus makes no difference how or by whom it is placed.

The Machaneh Efrayim, however, disagrees. He narrows the gap between the two requirements in the verse by defining the mitzva concerning rooftops in more general terms. Even this obligation, he argues, involves merely ensuring the presence of a railing around one's roof; it does not require one to do the work himself or through a formally appointed messenger. Therefore, according to the Machaneh Efrayim, one can fulfill this obligation through the work of a gentile.

[Rav Avraham Yitzchak Sorotzkin, in his Rinat Yitzchak (on our parasha), convincingly shows that the Sifrei never intended to differentiate between the obligation concerning rooftops and that of other areas. Rather, the obligation to fence-off other dangerous areas falls under the same halakhic category as the requirement involving roofs, calling into question the entire premise of the Chayei Adam and Minchat Chinukh.]

*****

In Parashat Ki-Teitzei we read of the mitzva known as "shana rishona," the obligations relevant to a couple's first year of marriage: "When a man has taken a bride, he shall not go out with the army or be assigned to it for any purpose; he shall be exempt one year for the sake of his household, to give happiness to the woman he has married" (24:5). We find in rabbinic literature two basic reasons behind this prohibition against a newlywed's joining the army, reasons that may impact the mitzva's definition and nature, as well. The Sefer Ha-chinukh offers what we would perhaps consider the more intuitive reason: "… in order to accustom one's nature with her… until all actions of other women and anything involving them will seem foreign to his nature." According to the Chinukh, this obligation is meant to solidify the relationship between husband and wife, to ensure that they grow accustomed to one another to the point where anyone else seems strange and foreign.

A second reason appears in the listing of the mitzvot by Rav Menachem Ha-bavli, cited by the Chatam Sofer (E.H. 2:155): "He may not go into the army because since his mind is on his new wife, he will not fight from his heart and soul, for half his being is at home; how can he fight with half a being?" According to this approach, this prohibition serves not the newlywed couple but the army: drafting a new groom, who concentrates more on his bride than on the critical tasks at hand, could result in a military catastrophe.

This debate may yield several practical ramifications. Firstly, to whom does the Torah address this mitzva? Rabbi Eliezer of Metz (one of the Tosafists), in his Sefer Ha-yerei'im, writes, "In the first year when a man marries a woman, he is obligated to make her happy… " Clearly, this view maintains that this mitzva directs itself towards the husband. The Semag, by contrast, appears to cast the obligation upon the community; they must ensure not to subject the groom to military service during his first year of marriage.

This issue may very well depend on the debate between the Chinukh and Rav Menachem Ha-bavli. If this mitzva is meant for the husband to feel natural with his wife, then the obligation more likely falls upon the husband. If, however, this prohibition arises out of a military concern, then the community or nation at large is commanded not to draft the new husband.

A second ramification involves the range of activity from which the husband must refrain during his first year of marriage. The verse speaks only of military service, and, indeed, the Rambam in his Mishneh Torah (Melakhim 7:10,11), the Radbaz (teshuvot, 1:238) and the Minchat Chinukh (581:2) all restrict the prohibition to serving in the army. By contrast, the Sefer Ha-chinukh, Rambam in his Sefer Ha-mitzvot, and Chatam Sofer all extend the prohibition to include business-oriented traveling. According the reason offered by the Chinukh, it stands to reason that any responsibility taking a husband away from home would be forbidden during the couple's first year. (Indeed, the Chinukh follows consistently in this regard.) If, however, we accept the second approach, viewing the army's concerns as the basis for this prohibition, then the groom may voluntarily take upon himself any financial responsibilities he wishes.

In conclusion, we should note what perhaps should be viewed as a third approach to understanding the nature of this mitzva. The Netziv, in his commentary on the Chumash (Devarim 24:5), understands the institution of "shana rishona" not as a prohibition or obligation, but rather as an exemption from military service granted to the groom. The Torah allow a newlywed husband to remain home with his wife during their first year of marriage even while the rest of nation is at war. Clearly, this perspective differs drastically from those taken by the Chinukh and Rav Menachem Ha-bavli.

(Today's edition of S.A.L.T. was taken from Rabbi Shalom Rosner's "Mitzvat Shana Rishona" in Beit Yitzchak (Yeshiva University), vol. 28, 5756.)

*****

As mentioned earlier this week, Parashat Ki-Teitzei concludes with the obligation of destroying Amalek and always remembering to do so. The final words of the parasha read, "you shall eradicate the memory of Amalek from under the heavens; do not forget." Already Chazal noted the apparent redundancy of the final words, "do not forget," in light of the admonition several verses earlier: "Remember that which Amalek did to you." If we must remember, obviously we must not forget! Chazal (Megila 18) understood the repetition as alluding to a verbal requirement. Mental recollection of the need to destroy Amalek does not suffice; we must actually verbalize this idea, a requirement we fulfill annually with the reading of these verses - Parashat Zakhor - on the Shabbat preceding Purim.

The Ketav Sofer, however, suggests a different explanation for the repetition, one which perhaps presents us with a powerful lesson. The Torah here requires us to remember two things. First, othe most basic level, we must remember Amalek's unprovoked attack and baseless hatred towards us. But secondly, we are to never forget the circumstances leading up to this event: the incident of Masa U-meriva. Chazal attribute Amalek's attack to Benei Yisrael's having doubted God's presence in their midst, specifically their declaration, "Is God in our midst, or not?" (Shemot 17:7; the verse immediately preceding the account of Amalek's assault). We must remember this, as well, as part of the obligation of recalling the incident of Amalek.

This explanation of the Ketav Sofer perhaps exemplifies the proper attitude to maintain when facing crisis. While certainly not overlooking the external forces threatening us, we must take into account our own shortcomings for which, perhaps (we can never know for sure), the Almighty punishes us. The Torah requires a two-tiered response to Amalek. First, we do our utmost to defend ourselves against our enemies and ensure our safety and security. But secondly, we conduct a thorough and rigorous process of soul-searching and introspection to identify the possible causes of divine wrath. The root of our troubles lies deeper than any social, economic, political or psychological factors to which we can point. We believe that while we do not claim full knowledge of God's decision-making process, we know that our actions impact upon that process. We must therefore greet crisis with repentance. Only after taking both steps - fighting the external enemy and correcting our internal imperfections - can we hope to defeat our ongoing battle against Amalek.

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This shiur is provided courtesy of the Virtual Beit Midrash, the premier source of online courses on Torah and Judaism 14 different courses on all levels, for all backgrounds.

MakeJewish learning partof your week on a regular basis - enroll in the
Virtual Beit Midrash

(c) YeshivHar EtzioAll rights reserved to Yeshivat Har Etzion

Yeshivat Har Et
Alon Shvut, Israel, 90433
office@etzion.org.il