Cash Bail in Jewish Law – Shoftim 5778

Of the many problems that California is currently facing, bail reform is one that has recently been in the news.

That is because there is a bill, SB10, that has been going through the California State Assembly and is going to be up for a vote this week after numerous modifications over the past year.

The latest version represents a compromise that does not please everyone.  The law would eliminate the cash bail system.  Instead, each county’s court system would determine whether to incarcerate an accused criminal based on a pre-trial assessment of whether a person would be a risk to society or pose a flight risk.

If SB10 passes the Assembly, it will still need to clear the State Senate and then be signed by the Governor.

Let me state at the outset that I do not know whether this law will solve the problem.  But the problem certainly needs solving.

Even though all of us are experts on the judicial system due to our careful viewing of Law & Order, please allow me to review a few details.

Bail is the release from custody of an accused person before the trial.  

It originated in England in medieval times as a way to make sure that a suspect would show up in court.  It does not necessarily involve the payment of money.

Cash bail, which SB10 would eliminate, means that the court requires the accused to come up with a certain amount of money in order to be released.  If the money is not raised, then the accused remains incarcerated through the end of the trial.  If the money is raised, the accused is released on bail, with the money being returned after the trial is complete, minus fees. 

In the 8th Amendment, the Founding Fathers included the clause – “Excessive bail shall not be required.”  The Supreme Court has never determined what “Excessive” means.

Under current federal law, certain crimes are not subject to bail.  Suspects must be kept in jail before the trial.  This includes cases in which there might be a sentence of death or life in prison, certain drug offenses, and a few other categories.  A judge who determines that a suspect would pose a risk to his/her community or be a flight risk can also deny bail.

For all other crimes, there is a bail hearing.  Most states use the cash bail system.  Accused persons who are unable to afford the bail amount face a choice.  In states where it is legal, like California, they can go to a bail bond agency, which loans them the money in exchange for a payment, usually 10% of the total bail amount.  The bail bondsman then makes sure that the accused shows up in court.

A person who cannot afford the bail bond must remain in jail, even though bail has been granted.

There are a number of problems with the cash bail system.

Keep in mind, first of all, that under American law a suspect is innocent until proven guilty.  This means that when a person accused of a crime who is kept in jail, he is kept there as a legally innocent person.

The median bail amount in California is $50,000.  Only 1 in 10 can afford to pay it.  63% of those who are currently sitting in jail have not been convicted of anything.  They are waiting for trial or sentencing.  A person who is in jail awaiting trial is unable to work.  He (it is usually a he) typically loses his job, and possibly his home.  He is unable to support his family.  He has great difficulty meeting with his legal team and preparing his defense.

In contrast, a person who has the means to post bail can continue to work and has a much easier time of meeting with his lawyer and preparing his case.  The result is that for those convicted of the same crime, those who post bail, on average, receive a lesser sentence than those who have to remain in jail before the trial.

There is evidence, as well, that bail rates for black and Hispanic defendants are set higher than for white defendants who are charged with the same crime.

Finally, the prospect of spending a long time in jail awaiting trial encourages innocent people to plead guilty to crimes they did not commit.  This gets them out of jail, but it also gives them a criminal record, which can have a lifetime impact.

SB10 tries to address these issues.  As the bill itself states:

It is the intent of the Legislature in enacting this act to safely reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system, and to ensure that people are not held in pretrial detention simply because of their inability to afford money bail. (SB10, Sec. 2)

I do not know whether SB10 will achieve these goals.  I am trying to learn more about it, but am certainly no expert.  I encourage all of us to educate ourselves on this issue.

When trying to understand an issue of criminal reform, it can be helpful to look at other systems.  While not perfect, our Jewish legal tradition is rooted in principles of fairness and equity.  It turns out that Jewish law, or halakhah, has something to say about bail as well.

This morning’s Torah portion, Shoftim, is primarily about the justice system.  Moses instructs the Israelites, collectively, to establish and maintain just institutions of government.  In the second verse.  Regarding judges, he declares:

Lo tateh mishpat, lo takir panim, lo tikach shochad ki hashochad ye’aver einei chakhamim visalef divrei tzadikim.

You shall not skew judgment.  You shall recognize no face and no bribe shall you take, for a bribe blinds the eyes of the wise and perverts the words of the innocent.  (Deut. 16:19)

These are the three principles of judicial fairness.  They appear numerous times in the Torah.  Usually, the Torah addresses them to judges specifically.  Here, Moses delivers these requirements to the Israelites collectively, as if to say that we all bear responsibility for the behavior of soceity’s officials.  We must make sure that those whom we appoint as justices and magistrates abide by principles of equality and fairness.

These three concepts present three aspects of judicial fairness.

Jewish law recognizes that judges are human beings.  A judge may not do anything in the court that would show favor to a wealthy person or an acquaintance.  Not only is a judge not allowed to take a bribe, for obvious reasons, a court is not allowed to charge fees to the plaintiffs in a case.  Mishnah Bechorot (4:6) states that “anyone who charges a fee to the litigants to judge – his judgment is nullified.”

The judge cannot allow anything to occur in the courtroom that might prevent a plaintiff from presenting the best possible case.

The judicial system the Torah describes is fairly uncomplicated.  In a real legal system, however, there are a lot more moving parts.  It is not difficult to imagine a flawed court that is comprised of well-intentioned, knowledgeable professionals of high moral character.

Regarding bail, the Talmud (BT Sanhedrin 78b) deals explicitly with the question of what to do with a suspect before the trial is held.  If it is a capital crime – in other words if the accused has been charged with murder – he must be jailed by the court until guilt or innocence can be determined.  In such a case, no bail is permitted.  If the accused has severely injured a person, and it is not clear if the victim will survive, he is also held in jail.  The reason is because the court does not yet know if he will need to be tried for murder or for injury.  Rashi explains that the accused is imprisoned out of a concern for flight-risk.  If the suspect injures another, but the injuries are not considered to be life-threatening, then he is released until the trial.  

The Mekhilta (Mishpatim, Ex. 21:19, 2), an early legal midrash collection on the book of Exodus, addresses the question of cash bail directly.  In the situation described in the Talmud, the accused is not permitted to post bail and go free.  He must remain incarcerated until the victim’s fate resolves.  

An entry under “Bail” in the 1906 Jewish Encyclopedia concludes as follows:

…as a rich man can readily give Bail and the poor man can not, the release of the prisoner on Bail would run counter to that other oft-repeated rule of the Torah, ‘One law there shall be to you.'”

Over the centuries, Jewish law has not traditionally employed incarceration as a punishment in the legal system.  It was basically used just for holding an accused murderer before trial out of concern for public safety and potential flight.

There are essentially three types of punishments that a Jewish court can administer.  For capital crimes, the punishment is death.  For sins, the court can administer lashes.  For civil and personal injury cases, there are fines.

One form of imprisonment that is mentioned in ancient sources is called the kippah.  It was a small cell in which a person would be imprisoned and fed meager rations until he died.  This could be used in a case in which a murderer was found guilty, but could not be sentenced to death because of a technicality.  There is no evidence that the kippah was ever actually used, though.

Dina d’malkhuta dina is an ancient concept that is applied in particular to monetary laws.  “The law of the land is the law.”  In order to participate in the economies of the societies in which they live, Jews need to adopt those society’s laws, including when they do not conform to Jewish law.

For most of the past two thousand years, Rabbis did not have the authority to issue legal rulings except in cases that were internal to the Jewish community.  Many of the discussions on criminal and civil law, therefore, are theoretical.  But there is a historical record of a cash bail system being utilized by a Jewish court.

Rabbi Yitzchak ben Sheshet Perfet, known by his acronym as the Rivash, was a 14th century Spanish Rabbi.  He wrote a teshuvah, a legal decision, that deals with a question of whether a debtor who could not pay off his debts could be incarcerated.  He rules that this would be forbidden under Jewish law.  But then he laments:

The truth is, in my own city, the judges’ custom is to imprison a person who is liable in this manner, according to an act of the community.  And they further enacted that even without being found guilty, any person can be held over a lawsuit, unless they pay collateral, and they call this a ruling of the court.  I did not want to allow this act to stand, because it is not in accordance with our Torah’s law.  And they said to me: this is in accordance with the “marketplace act” [a principle allowing new rules that make commerce smoother], because of swindlers, and so as not to bar the door in the face of borrowers. And I allowed their custom to stand. (Teshuvot HaRivash 484) 

In other words, in the Rivash’s day, Rabbinic courts were sending Jews to debtors prison and allowing them to post bail.  This was apparently the dominant practice in the area, and was deemed necessary by the leaders of the Jewish community to preserve the integrity of the marketplace.  Knowing that it was against the Torah, the Rivash reluctantly allowed it to stand.

The existence of the modern State of Israel has made the question of how to punish criminals in a Jewish legal system practical.  

Rabbi Haim David HaLevy, the former Chief Rabbi of Tel Aviv, who died in 1988, wrote a Tehuvah in which he stated categorically that a person who is being charged for a capital crime should be incarcerated without bail under any circumstance.  Citing the Rivash, he concludes that “that for all other crimes, for which the punishment is monetary, we let them go [on bail] until the determination of the sentence.”  (Aseh L’kha Rav 3:48)

Like any legal system, Jewish law is not perfect.  Nevertheless, for more than three thousand years, it has strived to conform to principles of justice and equity that are rooted in the Torah itself.  As such, it has something to teach us today.

I would never suggest that state or federal law must conform to Jewish law.  We Jews should be nervous whenever a religious group tries to impose its beliefs on secular law.

But our ancient tradition has much to teach us concerning the establishment of societies and institutions that are guided by justice and equality.  We would be wise to improve our understanding of Jewish law as we try to determine the best way forward for our community, our state, and our nation.

 

BIBLIOGRAPHY

Incarceration in Jewish Law: A Brief Overview

10 things you need to know about money bail

It’s a Great Mitzvah to be Happy Always – Re’eh 5778

Since 2012, the United Nations has conducted an annual World Happiness Report.  It ranks 156 countries by the collective happiness of their populations using weighted metrics derived from per capita GDP, degree of social support, healthy life expectancy, freedom to make life choices, generosity, and perception of corruption.  According to the 2018 World Happiness Report, America ranked 18th in the world, but we have been on a downward trajectory over the past decade.  Israel was 11th, if one can measure such a thing.

Of course, this has nothing to do with happiness as each of us experiences it individually.

Am I happy?

How do I get it?  And what is it?  Perhaps it is a chemical release that we can measure through neurobiology.  Maybe it is a feeling of purpose in life, or the awareness of being wanted.  Perhaps happiness is something we experience when we indulge our appetites.

One of the recurring themes in this morning’s Torah portion, Parashat Re’eh, is simchah – happiness, or joy.  The Hebrew root sin, mem, chet occurs exactly one time each in the Books of Genesis, Exodus, Leviticus, and Numbers.  It appears twelve times in the Book of Deuteronomy.  Seven are in Parashat Re’eh.

All seven occurrences contain similar elements.  The Israelites are told to rejoice when they bring various kinds of voluntary and mandatory offerings to the Temple.

Here is one example, describing the observance of the holiday of Shavuot:

V’samachta lifnei Adonai Elohekha… You shall rejoice before the LORD your God with your son and daughter, your male and female slave, the Levite in your communities, and the stranger, the fatherless, and the widow in your midst, at the place where the LORD your God will choose to establish His name.  (Deuteronomy 16:11)

You, or rather, the Israelite, must gather together with all of the members of his household: his wife, children, and servants.  Plus, he invites the poor and dispossessed to join with him.  They are all to assemble “at the place where the Lord your God will choose to establish His name,” that is to say, the Temple in Jerusalem.  There, they are to bring a freewill offering from the recent harvest, as an observance of Shavuot.

Note that it is not God who is doing the rejoicing.  It’s people – us.  This is not the case in other books of the Torah, which emphasize the burning up of meat to send up a pleasing odor to the Lord.  In Deuteronomy, we worship God by celebrating together and creating a mood of festivity among ourselves.  When Israelites brought one of these offerings, they did so as an acknowledgement and expression of thanks for the blessings that had been provided by God. 

The parashah implies that the recipe for true simchah requires several things: for us to be together, for us to share our bounty with the poor, for us to eat and drink, and for us to acknowledge that any blessings we get to enjoy in this world are ultimately gifts from God, and not merely the products of our own efforts.

Finally, by emphasizing that all of this must take place in the Sanctuary, and on specific occasions, the Torah channels our expressions of joy into sacred contexts.  After all, there can be danger in unbounded releases of happiness.  Parties can get out of hand.

Does the destruction of the Temple and the ending of sacrifices mean that we no longer worship God with simchah? 

The Baal Shem Tov, the founder of Chasidism, placed a great emphasis on the idea of simchah as the central component of Judaism.  He offered an alternative approach to Jewish life, which in his day was so focused on intellectual achievement that it had lost the essence of what it meant to be Jewish.

All joy, even its lowest forms, originates in holiness and is a gift from God.  The Baal Shem Tov especially liked the following story from the Talmud.

Rabbi Beroka Hoza’ah used to frequent the market at Lapat where Elijah [the Prophet] often appeared to him. Once he asked [the prophet], “Is there anyone in this market who has a share in the world to come?”

[Elijah] replied, “No…” While [they were thus conversing] two [men] passed by and [Elijah] remarked, “These two have a share in the world to come.”

Rabbi Beroka then approached [the two men] and asked them, “What is your occupation?”

They replied, “We are jesters, when we see people depressed we cheer them up; furthermore when we see two people quarrelling we strive hard to make peace between them.”  (BT Ta’anit 22a)

One would imagine that the marketplace of a major Persian city would be filled with worthy people.  Scholars, merchants, philanthropists, civic leaders – many passersby who should merit a place the world to come.  Yet the only people worthy enough are the jesters.

The Baal Shem Tov’s great grandson, Rebbe Nahman of Breslov constantly strove to find ways to serve God with simchah.  Of his many beloved stories and teachings, the most well-known is: mitzvah gedolah lihyot b’simcha tamid.  “It is a great mitzvah to be in a state of joy always.”  (Likutei Moharan, II 24)

It sounds nice, and makes for nice lyrics to a niggun, but it is kind of a strange thing to say.  We usually think of happiness as something which we strive to achieve.  But a mitzvah?!  A commandments?!  Perhaps we might suggest that a life lived according to the Torah can lead a person to happiness.  But to suggest that there is a requirement to be happy seems unrealistic.

And even more far-fetched is the notion of tamid, always.  Can anyone achieve a constant state of happiness.  And if so, could the rest of us stand to be around such a person?

Rebbe Nachman knew this well.  He personally suffered from severe mood swings and depression.  He lost two children, and his wife died when he was thirty five.  He remarried almost immediately, contracted tuberculosis, and died at the age of thirty eight.  So what does Rebbe Nahman mean when he talks about simchah?

He teaches that it is in a person’s nature to be drawn to marah shechorah, black bitterness, and atzvut, sadness, from the travails of life.  We all suffers afflictions.  It would seem to demand all of our efforts to achieve a constant state of joy.  

Every one of us has a lev nishbar, Rebbe Nachman continues, a broken heart.  This broken heart is not something to suppress, nor is it something to wallow in, as that can lead us further down the path of black bitterness.  He advises instead that we should dedicate a fixed time each day during which to break our hearts and engage in honest conversation with God.  Then, we can be freed up to experience joy.

Indeed, Rebbe Nachman did this.  We have preserved many of Rebbe Nachman’s own spontaneous prayers that he recited in his daily conversations – or battles, as he described them – with God.  Embrace the brokenness and sadness, and then be freed up for joy.

Rebbe Nachman advised his chasidim to sing, and to dance.  He encouraged silliness, and lightheartedness.  “Finding true joy is the hardest of all spiritual tasks,” he taught.  “If the only way to make yourself happy is by doing something silly, do it.”  (Advice, Breslov Research Institute. p. 254)  Rebbe Nachman fervently believed that our spiritual joy could make an impact in the real world.

Shortly before Purim in 1803, Rebbe Nachman arrived in the town of Terhovitza, in Ukraine, for his annual visit.  (Likutey Moharan, Volume II, #10, p. 115) Czar Alexander I had recently issued an ukase, a decree instructing the issuance of “Enactments Concerning the Jews.”  This would eventually lead to laws for mandatory conscription and compulsory secular education.

Rebbe Nachman introduced one of his teachings by stating: “When, God forbid, there are decrees affecting the Jewish people, through dancing and hand-clapping these decrees can be mitigated.”

After he completed the lengthy and intricate lesson, Rebbe Nachman remarked: “This is what I said!  We are hearing news of decrees against the Jews.  But the days of Purim are near and Jews will dance and clap, and thereby mitigate the decree!”

At the Purim festivities that year, Rebbe Nachman danced even more fervently than usual.  “I have delayed the decrees for twenty-odd years,” he reflected afterward.

The decrees did not come until almost twenty five years later, in 1827, sixteen years after Rebbe Nachman’s death.

I don’t know if we have come any closer to defining simchah, but Parashat Re’eh and Rebbe Nachman offer paths to achieving it.  In the Torah, Simchah is experienced when we join with other people, including those without the means, to express gratitude for the gifts we have been given.  Spiritual simchah, expressed at holy moments and locations, is worship of God.

For Rebbe Nachman, it is the highest form of worship.  And even though life is difficult, unfair, and filled with sadness; and even though some people’s physical and psychological burdens seem to far exceed those of others, our ultimate task in life is to cultivate a state of constant joy.  This can only be done by acknowledging the sadness.  Maybe it is the black bitterness itself that makes true simchah possible.

Mitzvah gedolah lihyot b’simchah tamid.  “It is a great mitzvah to be in a state of joy always.”

Uncontrolled Anger and its Remedy – Shelakh Lekha 5778

Anger is powerful.  It is a core emotion, one we all experience.  It is a natural part of being human.

When we feel angry, we should pay attention, because it indicates when something is not right.  Anger is what alerts us to injustice.  It is how we prepare emotionally to respond to a perceived threat.

Uncontrolled anger, however, makes us forget important details, overrides our moral training, and makes us generally unpleasant to be around.  It causes us lose our ability to self-monitor and maintain objectivity.  Uncontrolled anger, with its partner, irrational fear, is responsible for much of the polarizing behavior in America today.

Anger will lead to Moses being banned from the Promised Land in a few weeks’ Torah portions.

To illustrate this point, the Torah depicts even God slipping into uncontrolled anger.  This morning’s reading, Parashat Shelach Lekha, describes the infamous story of the spies, who are sent to scout out the land of Canaan and bring back an advance report.

We enter the story at the moment when God is furious.  The Israelites have panicked after listening to the spies’ depressing assessment of their chances against the inhabitants of Canaan.

God is incredulous about the Israelites’ lack of faith.  He is frustrated beyond imagination.  “Let me strike them down with pestilence and start over with you, Moses!”

This is when Moses shows his true mettle.  In his prophetic role, he steps into the breach.  “But think about what the other nations will say,” Moses warns.  “‘This God of the Israelites did not have the power to finish the job.  Since he could not bring them into the land that He promised, He just killed them off in the wilderness.’  Is that how You want to be known?”

That is argument number one for Moses.  Argument number two is more personal.

Here it is in Hebrew:  וְעַתָּה יִגְדַּל־נָא כֹּחַ אֲדֹנָי כַּאֲשֶׁר דִּבַּרְתָּ לֵאמֹר  “And now, let the strength of my Lord increase, as you have spoken.”  (Numbers 14:17)  What is this koach, or strength, that Moses mentions?  And when did God speak about it?

Moses continues:

ה’ אֶרֶךְ אַפַּיִם וְרַב־חֶסֶד נֹשֵׂא עָוֹן וָפָשַׁע וְנַקֵּה לֹא יְנַקֶּה פֹּקֵד עֲוֹן אָבוֹת עַל־בָּנִים עַל־שִׁלֵּשִׁים וְעַל־רִבֵּעִים:

“Adonai, patient and full of lovingkindness, bearing iniquity and transgression, yet clearing, not clearing, calling-to-account the iniquity of the fathers upon the sons to the third and to the fourth [generation].”  (Numbers 14:18)  

Does this sound familiar?  Partially.  When is the last time that God threatened to wipe out the Israelites and start over with Moses?  At Mount Sinai, during the incident with the Golden Calf.  Moses talks God down at that time as well, using similar arguments.  While he is on a roll, Moses asks to behold God’s glory.  God agrees, and hides Moses in a cleft in a rock and passes the Divine Glory next to him.  While passing, God proclaims the thirteen attributes.

In this deja vu moment, Moses repeats God’s words back to Him.  He quotes some, but not all, of those attributes.  Maybe it will remind God, he thinks, of the last time when really really wanted to kill the Israelites but changed His mind.

Most of the commentators connect the koach, the strength that Moses wants God to increase with the term erekh apayim.  Literally, it means, long-nosed.  In Hebrew, this is a euphemism for patient.  The opposite is charon af, which means the burning nose, or flaring nostrils, a euphemism for anger.

So Moses is appealing for an increase in the relative strength of God’s patience.  Or, as Ibn Ezra puts it, that “the attribute of mercy should be victorious over the attribute of judgment to conquer Your anger.”

Anger has led God to forget about His own nature.  Moses is trying to awaken Divine compassion, which has become blocked.

Citing a midrash, the commentator Rashi takes it a step further. 

When Moses goes up Mount Sinai to get the Torah, he finds God writing down the Divine attributes.  Erekh apayim, Moses sees.  Long-nosed, patient.  Moses asks: “that is just for the righteous, right?

God corrects him, “Nope, it is for the wicked as well.”

“But should not the wicked be punished?” Moses asks.

“By your life,” God responds, “you are going to need these words one day.”

Today is the day.  The entire nation of Israel sins by listening to the ten spies.  God wants to obliterate them.

“But God,” Moses pleads.  “Didn’t you say that you are erekh apayim, patient?”

The Holy One replies, “I thought you wanted that to be just for the righteous.”

“No, no, no” Moses shakes his head.  “You said that it would also be for the wicked.”

Moses concludes his appeal by asking God to forgive the nation’s sin in accordance with the greatness of God’s love.  

God responds: סָלַחְתִּי כִּדְבָרֶךָ – “I forgive just as you have spoken.”

What a wonderful parallel.  Moses uses God’s words to remind God to be His best self.  And God responds by forgiving, according to Moses’ words.

So was God actually angry?  The midrash suggests that the story might have been told this way to teach a lesson about the danger of uncontrolled anger, and to offer a remedy.

The danger is that anger can cause me to forget who I am.  What are the values and principles that govern my life, that lead me to be me best self?  When I allow myself to be consumed by anger, I lose my way.

The remedy is another person.  Moses is the courageous prophet who has the nerve to confront God during God’s moment of rage.  To His credit, God accepts the intervention and snaps back, forgiving the Israelites.

I need to have people in my life who I can trust to step into the breach and tell me when I have lost my way.  And I should have the courage to be that person for someone else.  And most importantly, I should be receptive to hearing the voice of someone who has the courage to tell me, with love, when I am being an idiot.

The Chieftains’ Gifts – Naso 5778

One thing I have learned about lists of names in the Torah: While at first glance they seem repetitive, closer inspection usually reveals an aberration of some sort.  And behind that aberration often lies a story.

The end of parashat Naso is the longest chapter in the Torah, at 89 verses.  It describes the offerings that are brought by chieftains from each of the twelve tribes.

First, they get to collaborate on a gift of 6 carts and 12 oxen to pull them.  These are assigned to two of the Levite clans whose job it is to disassemble and carry the Mishkan, the Tabernacle.

But they are not done yet.  They have more to give.  God instructs that each of them should present his gift individually, one per day for twelve days.

The gifts are identical: one silver bowl and one silver basin, each filled with choice flour mixed with oil; a golden ladle filled with incense; a bull, a ram and a lamb in its first year as a burnt offering; a goat for a sin offering; and two oxen, five rams, five he-goats, and five yearling lambs as a sacrifice of well-being.

Have you ever showed up to a birthday party and found that the gift you brought, that you were so excited about, is exactly the same as someone else’s gift.  Funny?  Embarrassing?

The Torah details the offerings twelve times in a row, for every single chieftain.  Other than substituting the name of the tribe, the presenter and the day number, the text repeats itself twelve times, word for word exactly the same – – – almost.

There are three small aberrations, all appearing with regard to the first two names.   The first is that the title nasi, meaning “chieftain,” is absent from the first name on the list, Nachshon ben Aminadav.  The eleven other donors are given the honorific nasi.

The second aberration is that for the first two donors, Nachshon from the tribe of Yehudah and Netanel ben Tzuar of the tribe of Issachar, their names are mentioned before the tribe, as in “on the second day, Netanel son of Tzuar, chieftain of Issachar.”  For the other ten, the tribe is mentioned first, as in “on the third day, it was the chieftain of the Zebulinites, Eliav son of Chelon.”

The third and final difference also has to do with Netanel ben Tzuar of Issachar.  He is the only chieftain whose offering is accompanied by the verb hikriv, which means “to offer a sacrifice.”  For all the others, the introductory phrase at the beginning of verse 12 – va’yehi ha-makriv… et korbano – the one who offered his sacrifice – serves as an introduction to their offering.  This is explained by several of the commentators (Rashi on 7:24, Rashbam and Ibn Ezra on 7:13).

I know.  That is pretty nitpicky.  You might not have even caught the distinctions.

Operating under the assumption that the Torah is never sloppy, these three small aberrations must mean something.  Let’s see if we can figure out what they mean.

First, why is the word nasi , chieftain, missing from the description of Nachshon?  When he appears elsewhere in the Torah, he is certainly described as a chieftain of the tribe of Judah.  Nachshon, by the way, is credited by the midrash as being the first of the Israelites to walk into the Sea of Reeds.  Only when the water reached above his nose did the sea split.  Nachshon also happens to be the Brother in Law of Aaron the High Priest.

A midrash (Numbers Rabbah 13:17) explains that God is concerned that the rest of the chieftains might feel jealous of Nachshon for getting to present his gifts first.  As a sign of Nachshon’s humility, and to convey to the others that all of the gifts are valued equally by God, Nachshon’s honor is diminished slightly by leaving out his title.

The next irregularity in the list is that for the first two chieftains, their names are mentioned before their tribes.  Rashi cites a midrash (Sifrei Bemidbar 48) which explains that Nachshon collected his donation from his own personal wealth, not from the tribe.  He is especially generous.

As for Netanel from Issachar, the reason is connected to the third aberration.  He is the only chieftain who gets his own verb.  In fact, he gets it twice.

Rashi (on 7: 18), citing a midrash (Sifrei Bemidbar 52), relates the following story:  When the tribe of Reuven, who is the first born of Jacob’s 12 sons, sees that he is being skipped, he gets angry and complains to Moses.  “It was bad enough when you let Yehudah go first.  Now you are letting Issachar go ahead of me?!”

Moses scolds him: “It was God Himself who commanded that the tribes go in this order!”

What is so special about the tribe of Issachar, Rashi asks?  Two things:  First, Issachar is known to be a tribe that truly values talmud Torah, the study of Torah.  Second, it is Netanel of Issachar who encourages his fellow chieftains to bring these donations.  Thus, says Rashi, the verb hikriv appears twice to reflect the two reasons that Issachar is moved up.

So we see that these three tiny departures from the linguistic pattern are explained as indications of meritorious actions and/or characteristics of Nachshon and Netanel, along with their respective tribes.

There is a bigger question, however, regarding the overall order in which the tribes appear.  There are many passages in the Torah and in later books of the bible that list the sons of Jacob or their eponymous tribes.  The order, however, is not always the same.*

Sometimes, it follows their birth order.  Other times, the lists seem to reflect other considerations.  

The Book of Numbers opens with a military census of all adult male Israelites.  They are to be counted by tribe.  In the opening verses of chapter one, we find a list of the twelve tribes, along with their chieftains who are assigned to assist Moses in conducting the census.  They are the exact same chieftains who bring the offerings in today’s parashah.

One chapter later, the tribes are assigned their marching orders.  For reasons unexplained, the order is changed.  The marching order in chapter two is the same as the donating order in chapter seven.  I am going to read the first seven tribes in each list.  See if you can catch the difference

The census order begins as follows: Reuven, Shimon, Yehudah, Issachar, Zevulun, Efraim, Menashe, and so on.

The marching and donating order begins: Yehudah, Issachar, Zevulun, Reuven, Shimon, Gad, Efraim, and so on.

Quite a few changes.  And although the Torah does not give a reason, these changes are not arbitrary.  We have already seen how the midrash captures Reuven’s anger at being demoted from first position to fourth position.

Nachshon from the tribe of Yehudah often gets bumped to first place.  This reflects the future ascendancy of Yehudah as the tribe of King David and the seat of the future Southern Kingdom.

You might not have noticed another switch with regard to positions six and seven.  In the census order, the tribe of Efraim comes sixth.  In the marching and donation order, Efraim comes seventh.

A midrash points out the obvious.  If there are twelve consecutive days of donations, at least one of those days must have been Shabbat.  The first day was a Sunday.  Day seven, therefore, is Shabbat.  It is thus a special honor for the Chieftain of Efraim to be able to bring his gifts on this day.

What is so special about Efraim?  Efraim is the tribe of Yehoshua, who takes over the leadership of Israel after Moses.  Efraim also is destined to become the dominant tribe of the northern Kingdom of Israel.

A Midrash collection called Numbers Rabbah (14:2, 14:3) imagines Joseph observing Shabbat when he is the Prime Minister of Egypt, even though the Torah has not yet been given.  In a different version, the midrash notes Joseph’s incredible fortitude at being able to resist the temptations of Potiphar’s wife, motivated by fear of violating God’s holiness.  God rewards Joseph’s future descendants, the tribe of Efraim, by accepting their chieftain’s gifts on Shabbat, God’s holy day.

Nachmanides summarizes an extensive series of midrashim that also appear in Numbers Rabbah (chapters 13-14).  The chieftains decide, perhaps in response to Netanel from Issachar’s suggestion, to each make a final donation in honor of the dedication of the Mishkan.  Each one of them thinks about what he can offer that will be a meaningful gift, that will bring honor to God.

They each, independently, pick out silver bowls and basins, golden ladles, grain, oil, incense, and unblemished animals, and show up at exactly the same time.  Surprise, surprise!  They all bring the same gift.  How embarrassing!

How could this happen?

Nachshon brought a ke’arat kesef, a silver bowl, because in gematria, ke’arat kesef adds up to 930, the number of years that Adam lived.  Netanel of Issachar decided to bring his ke’arat kesef because it represents Torah, (based on a wordplay that I am not going to try to explain right now).  Eliav from Zevulun picked out his ke’arat kesef because the silver bowl represents the sea, which is how the tribe of Zevulun conducts its trade.  And Zevulun is known for supporting all of those Torah scholars from neighboring Issachar.

And so on with each of the tribes.  Every chieftain, independently, comes up with a meaningful reason to bring a ke’arat kesef weighing exactly 130 shekels.  And similarly with each of the other gifts.

It is, of course, a miracle that all of them came up with the exact same offerings.  But even more miraculous is that each of them has a different kavanah, a different intention, for doing so.

God considers all of the gifts equally precious.  To convey that preciousness, God commands that each chieftain must show up on his own day to present his offering.  Instead of just piling them all up together and sending the givers off, each donor is made to feel special and honored.

What could have been an embarrassing and contentious moment is saved.  And we are left with the longest, and certainly not the most boring, chapter of the Torah.

 

* Order in which the names of Jacob’s sons/tribes appear in various places in the Torah:

Birth Order

(Gen 30)

Jacob’s Blessing

(Gen 49)

Beginning of Numbers

(Num 1)

Order of Gifts, Marching Order

(Num 2, Num 7)

Reuben (L1)

Shimon (L2)

Levi (L3)

Judah (L4)

Dan (B1)

Naphtali (B2)

Gad (Z1)

Asher (Z2)

Issachar (L5)

Zevulun (L6)

Joseph (R1)

Benjamin (R2)

Reuben (L1)

Shimon & Levi (L2,3)

Judah (L4)

Zevulun (L6)

Issachar (L5)

Dan (B1)

Gad (Z1)

Asher (Z2)

Naphtali (B2)

Joseph (R1)

Benjamin (R2)

Reuben (L1)

Shimon (L2)

Judah (L4)

Issachar (L5)

Zevulun (L6)

Ephraim (R1b)

Menashe (R1a)

Benjamin (R2)

Dan (B1)

Asher (Z2)

Gad (Z1)

Naphtali (B2)

Judah (L4)

Issachar (L5)

Zevulun (L6)

Reuben (L1)

Shimon (L2)

Gad (Z1)

Efraim (R1b)

Menashe (R1a)

Benjamin (R2)

Dan (B1)

Asher (Z2)

Naphtali (B2)

Mordechai the Spymaster – Shabbat Zakhor 5778

Every year as I prepare for Purim, I discover a new way of reading the text that gives such wonderful insight into its characters, and seems to describe situations and relationships that we face today.

The Book of Esther is full of twisting reversals, points high and low.  It is filled with extreme emotions – joy, sadness, terror, rage, fear, hatred, and relief.  The lowest – and most triumphant – moment in the story occurs in chapter 4.

In chapter three, Haman uses lies and bribery to extract permission from King Achashverosh to kill all of the Jews of Persia in revenge for Mordechai refusing to bow down to him.  At the end of the scene, Haman and the King sit down to drink while the city is dumbfounded by the quickly spreading news.

Thus begins chapter 4.  Mordechai springs into action.  He has made it his habit to spend his days hanging outside the harem, where his niece Esther is safely ensconced as queen.  Upon hearing the terrible news, Mordechai tears his clothes, puts on sackcloth, and covers his head with ashes – all signs of mourning.

Esther’s servants inform her about the bitter weeping of the Jews of Shushan and her uncle Mordechai.  But Esther has been removed from everything taking place in the lower city, so she has no idea what is causing their great sorrow.  She is not allowed to leave the palace to see things for herself.

She sends her servant, a eunuch named Hatach, to talk to Mordechai, check things out for her, and bring back a report.  Mordechai tells him the whole story, and even shows him Haman’s decree with the King’s seal upon it.  He sends Hatach to Esther with the message that she must go before the King to appeal for mercy on behalf of her people.  In fact, Mordechai commands her to do so.

Esther’s response is disappointing to him.  “Everyone knows,” she says “that if any person, man or woman, enters the king’s presence in the inner court without having been summoned, there is but one law for him—that he be put to death.  Only if the king extends the golden scepter to him may he live. Now I have not been summoned to visit the king for the last thirty days.”

Now there are a couple of ways to understand Esther’s comment.  Thirty days is a long time.  Perhaps she is out of favor with the king, and if she shows up unannounced she faces execution.  Or perhaps she is suggesting that enough time has passed – thirty days – that she is expecting to be summoned to the King any day now.  So why risk her life needlessly?

We have been trained to think of this episode in the Megillah in the following way: Mordechai is the paternalistic uncle trying to convince the young, naive Esther to intercede on behalf of the Jewish people.  This is not what is going on.

Esther’s response is not an outright refusal.  In fact, her statement shows deeper thoughtfulness and strategy than her uncle’s.  Consider these the opening salvos in a political negotiation.

Mordechai responds, again through Hatach, playing his Kissingerian role as shuttle diplomat.  “Do not imagine that you, of all the Jews, will escape with your life by being in the king’s palace.  On the contrary, if you keep silent in this crisis, relief and deliverance will come to the Jews from another quarter, while you and your father’s house will perish.  And who knows, perhaps you have attained to royal position for just such a crisis.”

How should we understand this densely packed statement?  Mordechai’s opening words sound like a threat.  He seems confident that the Jewish people will be saved, whether by Esther’s intercession or not.  This is the closest reference to God in the Megillah, although it is still just an intimation.  Perhaps Mordechai is even appealing to her ego, dangling the prospect of becoming the hero of the story.  In any event, it seems, on the face of things, that Mordechai has taken Esther’s response as a refusal to act, and now he is trying to change her mind.

Perhaps there is another way to read the story.  Esther has not refused Mordechai.  Rather, she has communicated to him what conditions in the palace are like; how dangerous it is there for her.  Now Mordechai is approving of her plan to take things slow.  This is the answer he wants.  So he offers encouragement.  The risk is worth it.  Your fate in the palace is the same as ours out here on the streets.  Indeed, if you don’t act, you could die while the rest of us are saved by some other hero.  You are the Queen.  Now act like one.

Esther responds with a plan.  She sends word to Mordechai to assemble all the Jews of Shushan and fast for three days.  Meanwhile, she will do the same with her court in the palace.  Then she throws in a bit of melodrama, “and if I am to perish, I shall perish.”

She throws Mordechai’s threats back at him.  She will indeed try to intercede, but she makes sure that Mordechai understands the risks she is taking.

We are now back where we started from.  The chapter opened with Mordechai and the Jews of Shushan in mourning.  Now, Esther has declared her solidarity with the Jews of Shushan by calling for a three day public fast, also an act of mourning.

In the postscript to the chapter, Mordechai returns to the city, and does what Esther has commanded him.

Notice that the exchanges began with Mordechai commanding Esther.  Now it is Esther who is doing the commanding.  And Mordechai seems perfectly willing to go along with it.  Their roles have reversed.

Why does Mordechai back down?  Is Esther’s plan such a good one?  ‘Fast for three days and I’ll take care of it.’  Can he not come up with something better?  Is he comfortable being commanded by his niece?

Again, we have more than one way to read this story.  On its surface, it would seem that Esther has won the argument.  The intercession will take place on her terms.  In doing so, she has established herself as the one with the power.  She is the Queen, after all.  No more will she allow herself to be controlled by Mordechai.  Mordechai obediently goes back to do as he is told.

Or, perhaps Mordechai has won the argument.  This is exactly the outcome he has wanted from the beginning.  He has always known his niece has tremendous potential.  Her selection as queen does not surprise him.  She has been perfectly placed to play a critical role on behalf of the Jewish people.  Think of her as one of those sleeper agents that are waiting to be activated.  Mordechai needs to find a way to awaken Esther’s latent talents so that she can become the hero he has trained her to be.

Mordechai is a spymaster, working from behind the scenes to nurture Esther’s talent and arrange the situation so that she will be in exactly the right place at exactly the right time.

To further support the notion that Mordechai is a spymaster, consider the following:  Mordechai is the one who somehow uncovers the plot by two guards to stage a palace coup, but he does not bring the news himself to the King, although he certainly could have.  He sends the warning through Esther.  Why?  So that she can establish her credibility and raise her stature in the court.  Mordechai stays in the background, where he wants to be.  Perhaps that is why he is not initially rewarded for his meritorious service.

Also, somehow, Mordechai has found out the exact amount of money that Haman has secretly promised to give the king.  It is safe to assume that this detail is not public knowledge.  After all, leaders generally do not want word to get out that they have accepted a bribe.  Mordechai knows just where to be and when to be there to get the critical information that he needs.

So why does Mordechai obediently follow Esther’s command?

He is happy to.

He has finally seen her leadership qualities burst forth.  He has groomed her for greatness from the very beginning.  Even though she has not elucidated her plan, Mordechai is confident that Esther will know exactly what must be done to save the Jewish people.

And she does, with Mordechai proudly watching from the sidelines.

The book is named after Esther, the hero of the story.  But we also recognize Mordechai’s contribution as the uncle who adopts her, protects her, trains her, gives her wings, and eventually lets her fly to a greatness that she achieves through her own courage and intelligence.

Isn’t that we try to do as parents?  While they are in our care, we provide our children with protection, education, and self-confidence.  We know that they will face adversity in their lives.  We encourage them to face it squarely, perhaps warning them what could befall them if they do not confront challenges directly.  And we are so proud when they recognize the risks, and step forward nevertheless.

Eventually, our children reach an age when we can no longer exert total control over their lives, as much as we might want to.  Like Mordechai, hopefully, we will have enough faith in them that we can watch from the sidelines while they make their own decisions, command their own fates, and deal with the consequences.

The difficult question that does not have a straightforward answer is: When exactly does that moment come?  Is it twelve, thirteen, thirty four?

The Unclaimed Crown – Terumah 5778

Parashat Terumah is the first of two parashiyot that describes the design of the Mishkan, the portable Tabernacle that the Israelites build and then carry with them throughout their time in the wilderness.  It also describes the furnishings that resided within the Mishkan.

The Mishkan becomes a somewhat “permanent” temporary structure.  Even after the Israelites enter the Promised Land, it will take several centuries before the Beit Hamikdash, the Temple, to be built by King Solomon in Jerusalem, using the Mishkan as a model.

V’asu li mikdash v’shakhanti b’tokham.  “Build for me a Sanctuary that I may dwell in your midst,” God instructs Israel through Moses.  The Mishkan is the place where God’s Transcendent Presence becomes immanent.  The people can simply look to the center of the camp, see the clouds of incense hovering over the Tent, and know that God was there to protect them, bless them, and bring them prosperity.

Everything pertaining to the Mishkan, and later the Beit Hamikdash, is deeply symbolic.

In the ancient world, the belief was that when people sin, impurity becomes attached to the Mishkan, and specifically to the altar.  God’s Presence cannot remain in an impure Sanctuary.

That is where the priests come in.  By conducting the rituals, they cleanse the Mishkan and the altar of impurity, allowing God’s Presence to return, bringing blessings to the people.

This is true for the Mishkan in the wilderness, and later for the Beit Hamikdash in Jerusalem.

But something begins to change when the Rabbis come on the scene about two thousand years ago.

They take over from the biblical prophetic tradition, which tends to be skeptical of the automatic nature of the Temple rituals.  Prophets like Isaiah, Micah, and Amos recognize that while the priests conducted all of the Temple rituals with care and precision, people continues to behave with greed and callousness.  There must be more to being a people of God than merely offering sacrifices.

The Rabbis inherit and replace this countercultural prophetic tradition.  They interpret the Mishkan and Beit Hamikdash symbolically, deriving universal moral lessons from the specific rituals that were once conducted only by the priests.  Even before the destruction of the Second Temple in the year 70 CE, certain Jewish circles are starting to imagine a decentralized Judaism.  They embrace the ancient Temple symbols, but add them new layers of meaning that make them accessible to any Jew, in any place.

Three of the important pieces of furniture in the Mishkan are described in Parashat Terumah – the altar, the ark, and the table.  The altar, the mizbeaḥ, is where the sacrifices are performed.  The Ark, the aron, houses the tablets of the Ten Commandments and serves as God’s footstool in the Holy of Holies.  The table, the shulḥan, is where twelve loaves of bread are placed every week on Shabbat.

In describing each of these items, the Torah indicates that they are to have a zer of gold encircling the top.  It is not clear what a zer is.  Our English translation uses the word “molding.”  It is some sort of decorative gold rim around the top of the altar, ark, and table.  The Talmud (Yoma 72b) describes this zer as a crown, with symbolic meaning that extends way beyond mere aesthetics.

Rabbi Yoḥanan teaches: “There were three crowns on the sacred vessels in the Temple: The crown of the altar, and of the Ark, and of the table.”  Each of these crowns is available to be claimed by someone who is deserving.  For the crown of the altar, it is Aaron who is deserving.  He takes it, becomes the High Priest, and passes on the crown of priesthood to his sons after him.  The crown on the table is understood to represent kingship.  David is the deserving one.  He takes it for himself and passes it on to his children after him.  What about the third crown – the crown of the ark?  It still sits unclaimed, says Rabbi Yoḥanan.  Kol ha-rotzeh likaḥ, yavo v’yikaḥ.  Anyone who wishes to take it may come and take it.  What is this crown of the ark?  It is the crown of Torah.  Anyone is allowed to come and wear the crown of Torah.

The midrash continues: You might think that this third, unclaimed, crown is inferior to the crowns of kingship and of priesthood.  After all, nobody has taken it.  This is not the case.  It is in fact greater than both of them.  The Book of Proverbs states, “Through me kings will reign”  (Pr. 8:15).  The strength of the crowns of priesthood and kingship is derived from the crown of Torah, which is greater than them all.

This midrash undermines the old system.  Torah, that is to say, learning, has replaced the old dynastic systems of religious leadership.  This is one of the great legacies that the Rabbis have left to us: a meritocracy based on learning that is accessible to anyone who chooses to embrace it, regardless of lineage, wealth, or background.

This idea is developed further.  What does it mean to take the crown of Torah?  The Talmud again derives its answer through a creative analysis of the Mishkan.  We have already identified the ark as representing Torah.  It contains, after all, the Ten Commandments.  This ark, we read in the this morning’s Parashah, is constructed preciselt.  It is kind of like one of those Russian nesting dolls, with three compartments.  The middle compartment is a box made out of acacia wood.  It is sandwiched between an inner compartment and an outer compartment, each of which are made out of gold.

In other words, the exterior part, that is visible to the outside world, is gold.  But so is the inner part, the part that nobody sees.  In the Talmud, Rava teaches kol talmid ḥakham she’ein tokho k’voro eino talmud ḥakham.  “Any Torah scholar whose inside is not like his outside is not a Torah scholar.”

Torah is not meant to be merely an intellectual pursuit.  It is a living document, one that must transform the behavior of the one who studies it.

The Fundamental Freedom – Vaera 5778

In his famous book, Man’s Search for Meaning, psychotherapist and Holocaust survivor Viktor Frankel shares how he and others managed survive in the concentration camps: by finding ways to live with purpose.  He had just completed a manuscript for publication when he was arrested.  He tells how disappointed he was when the coat he was wearing was confiscated from him in Auschwitz.   The manuscript was hidden in the lining.  In return, he was given the worn rags of another prisoner who had recently died.  He reached into the pocket, and what did he find?

One single page torn out of a Hebrew prayer book, containing the most important Jewish prayer, Shema Yisrael.  How should I have interpreted such a coincidence[, he asks,] other than as a challenge to live my thoughts instead of merely putting them on paper.  (p. 119)

Over the course of the next several years, Frankel’s “deep desire to write this manuscript anew helped [him] to survive the rigors of the camps…”

Drawing upon his experience as a survivor, Frankel asks the fundamental question of how we live lives with meaning?  In seemingly hopeless situations, how does a person embrace hope?

As the Book of Exodus opens, the Israelites have been enslaved for generations.  They are groaning and sighing, and apparently have given up on the possibility of freedom.  But God hears their cries, and remembers the promise to Abraham, Isaac, and Jacob.

When Moses goes to them the first time, they are skeptical.  After he appears before Pharaoh with his initial demand to “let my people go,” Pharaoh responds by increasing their workload.

In Parashat Vaera, God again sends Moses to carry the message to the Israelites that they are about to be freed.  “Get ready to be redeemed!”

Moses says and does exactly what God tells him, but he does not get the response that he is hoping for.  “They did not heed Moses out of shortness of breath and hard bondage.”

Moses then turns to God, exasperated.  “If the Israelites would not listen to me, how can I expect Pharaoh to take me seriously, and I am of uncircumcised lips!”

It seems that the Israelites and Moses also have some learning to do.  The commentators struggle to understand why both the Israelites and Moses are not responding enthusiastically to God’s message of freedom.

Rashi understands the Israelites’ “shortness of breath and hard bondage” literally.  They are working so hard that they are incapable of mentally processing Moses’ fairly simple message of hope.

Other commentators see the Israelites’ situation as being more spiritual and psychological.  Kotzer Ruach, “shortness of breath,” could also be translated as “shortness of spirit.”  In other words, the Israelites are depressed, and their depression renders them incapable of considering the possibility that there could be an end to their suffering.  Using Victor Frankel’s terminology, they have not yet made the choice to embrace a cause to live for.

Moses’ strange expression, “I am of uncircumcised lips,” has perplexed commentators for millennia.  Robert Alter points out that it is a mistake to see it merely as a colorful way of saying, “I have a speech impediment” or “I am not good at public speaking.”

Rather, Moses is declaring that he is not fit “for the sacred task.”  He feels that he is spiritually unable to do what God has asked him to do.  That is, to be God’s mouthpiece, both in performing miracles before Pharaoh, and in leading the Israelites to freedom.  Moses does not think that he is up for the job.

The Torah tends to be critical of people who do not have faith in God’s ability to redeem them.  But I can see where Moses and the Israelites are coming from.  They are being asked to do something that has never been done before.  So it is understandable that they might be a little hesitant about getting their hopes up.

Hope is closely related to fear.  Indeed, hope is a response to fear.  Holding us back from hope is the fear that deliverance may not come, and something terrible awaits us on the other side.

The Israelites are understandably afraid.  What if Moses fails?  What if Pharaoh increases their tasks even more?  It is better to continue in the despair that they know, rather than embrace the possibility of a redemption that they are unlikely to see.

During Passover, we remember these events.  Our core goal is to fulfill the admonition to “See ourselves as if we personally went out from each Egypt.”  We tell stories of personal deliverance, of family members being rescued.

But we must remember that before we dared hope for deliverance, we experienced moments of fear and despair.  It takes a great act of courage to hope.  It takes a willingness to embrace the freedom to choose a cause to live for.

In Man’s Search for Meaning, Viktor Frankel writes

We who lived in concentration camps can remember the men who walked through the huts comforting others, giving away their last piece of bread. They may have been few in number, but they offer sufficient proof that everything can be taken from a man but one thing: the last of the human freedoms — to choose one’s attitude in any given set of circumstances, to choose one’s own way.  (p. 109)

When Moses first appears to the Israelites, neither they nor he have embraced the freedom to choose their own attitudes.  The story of Exodus is the story of their eventual embrace of this fundamental freedom, which can be exercised no matter what outside influences they confront.

That is the question that we strive to ask ourselves each day, no matter what external forces may be waiting for us.  How will I embrace the fundamental freedom to choose my attitude?