Category Archives: Deuteronomy (דברים)

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August 21, 2021

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Build a Parapet – Public Safety – Ki Teitzei 5781

As far as I know, this morning’s portion contains the Torah’s only example of a building code. 

When you build a new house, you shall make a parapet for your roof, so that you do not bring bloodguilt on your house if anyone should fall from it.

Deuteronomy 22:8

For those who are wondering, a parapet is a fence. 

As we might imagine, the Rabbis go into great detail outlining the particular requirements of this broadly-stated rule.

The Shulchan Arukh, the code of Jewish written in the sixteenth century by Joseph Caro, does a good job of summarizing the discussions and legal rulings that evolved over the preceding 1,500 years.

In chapter 427 of Choshen Mishpat, which happens to be the final chapter of the entire Shulchah Arukh, the laws of building a parapet are discussed.

It starts with particular details.  Which kinds of structures are included? Houses and apartments, yes; warehouses and barns, no. Synagogues and schools, no. (But don’t worry, we have a parapet around the flat parts of our roof here at Congregation Sinai.)

How tall does a house have to be to require a parapet?  How many walls?  How high does the parapet need to be? And so on.

Closely reading the Biblical text, the rabbis identify both a positive commandment to build a parapet around the roof as well as a negative commandment to not bring bloodguilt upon your house. Thus, someone who fails to build said parapet transgresses two separate commandments of the Torah.

And then the Shulchan Arukh broadens the lens to include any physical structure which might pose a danger to other people, such as a well or a pit.  If you have a manhole on your property, it needs a manhole cover or a fence around it.

And then the Shulchan Arukh takes an even bigger step back, stating that “one has a positive duty to remove and guard oneself from any life-threatening obstacle,” like unsafe drinking water.

Ending the discussion of the laws of building a parapet, and thereby ending the entire Shulchan Arukh itself, is the following statement:

Anyone who transgresses on these and similar matters by saying, “What business is it of anyone else if I put myself in danger,” or “I am not concerned with this,” he should be lashed for disobedience.

Shulchan Arukh 427:10

We began with the simple statement that a person who builds a private home must make sure that it does not have any features that might be dangerous to themself or anyone else. By the end of the section, the Rabbis have stated that the Beit Din, the Jewish court, can physically compel someone whose actions endanger not just other people, but even themself.

Jewish law has always struggled with the tension between individual autonomy and collective responsibility.

Laws such as these developed at a time when Jews were often left to their own affairs when it came to communal rules and behaviors.

Now, rather than following the Torah’s building codes, state and city regulations are in place to make sure that new construction is safe.

That there are limits to personal autonomy, especially when it comes to safety, is firmly established in Jewish law.

Consider this with respect to mask and vaccine mandates.

Our community has been so supportive with regard to the changing rules for masking and distancing in the synagogue. With the goalposts constantly moving, figuring out how to bring the community safely together has not been easy.

But we all seem to recognize the need to take into account the effects on others when we make decisions for ourselves, even when it means sometimes doing something inconvenient or uncomfortable. 

Let’s come back to the Shulkah Arukh. Joseph Caro must have wanted to end the on a positive note. Because after warning that the person who disregards safety can be compelled through lashes, he writres the following:

May good blessings come upon the person who is careful with them [i.e. the rules about public safety].

Shulchan Arukh 427:10

May good blessings come upon all of us.

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September 21, 2019

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The Head & Not The Tail, The Top & Not The Bottom – Ki Tavo 5779

Rosh Hashanah is coming, and with it, an entire menu of culinary treats.  Apples and honey.  Those are obvious.  The challah is round—to symbolize a crown; and filled with raisins—for a sweet new year.

But there is more.  The Talmud recommends a number of foods to eat on Rosh Hashanah, such as beans, leeks, beets, and dates.  The Aramaic names for each of these foods form puns.

For example, rubia—”beans,”sounds like yirbu—”increase”, as in “May our merits increase.”

Karti—”leeks”—sounds like yikartu—”cut off”.  Silkei—”beets”—sounds like yistalku—”removed”.  Tamrei—”dates”—sounds like yitamu—”finished”.  All three of these can be eaten as if to say, “May our enemies be cut off, removed, or finished.”  Take your pick.  Or eat all three.

Other foods have been added to the list.  Rimon—”pomegranate”—”May our mitzvot be as numerous as the seeds in the pomegranate.”  It also happens to be symbolic of fertility, so interpret that as you will.

But the best food to eat on Rosh Hashanah—actually, this is debatable—is the head of a sheep or fish.  Rabbi Meir of Rothenberg would eat the head of a ram, to symbolize the ram that was sacrificed instead of Isaac, which we read about on the second day of Rosh Hashanah.

Does anybody here follow this custom?  In my house, we buy gummy fish, cut them in half, and eat just the head.

What do we say when we eat the fish head?  Nih’yeh l’rosh, v’lo l’zanav.  “May we be like the head, and not like the tail.”

It is a strange expression, and it comes from this morning’s Torah portion.

In Parashat Ki Tavo, Moses describes a covenant ceremony that the Israelites will perform as soon as they cross over into the Promised Land, which they be doing without him.  As an entire nation, they renew their commitment to God.  During the ceremony, they recite a litany of blessings and curses which will befall the nation as a consequence of whether the people follow God’s commandments.

The blessings are what we might expect: Abundant rain in the right season.  Successful harvests.  Prosperity.  Victory against enemies.  The other nations of the earth will stand in awe of Israel.

Then, after these tangible blessings have been pronounced, there is one additional blessing that seems less specific.  Un’tanekha Adonai l’rosh v’lo l’zanav; v’hayita rak l’ma’alah v’lo tih’yeh l’mata.  “The Lord will make you the head, not the tail; you will always be at the top and never at the bottom…”  (Deut. 28:13)

The curses, beginning a few verses later, are the inverse of the blessings, and then some.  Included among the curses is the declaration that the stranger “…shall be the head and you shall be the tail.”  (28:44)

This is clearly where the Rosh Hashanah practice of eating the sheep or fish head comes from.  But what does it mean?

On its face, it seems fairly straightforward.  It is a metaphor for the economic and political success that Israel will experience if it behaves righteously.  Even today, we use the term “head” to refer to a leader, or the person at the top.  The “tail” is the follower. There is internal evidence in the Torah that the term refers specifically to being a creditor nation, rather than a debtor nation.

Mystical interpretations, however, identify hidden, spiritual meanings in the words of the Torah.  The Chassidic Rabbi Levi Yitzchak of Berditchev, author of the Torah commentary Kedushat Levi, suggests a deeper meaning.

He begins his commentary by asking why the Torah bothers to include the “tail” or the “bottom.”  Shouldn’t it have been enough to have said Un’tanekha Adonai l’rosh; v’hayita rak l’ma’alah—”The Lord will make you the head and you shall always be at the top”?  Adding “and not the tail,” and “never at the bottom” is superfluous.  And the Torah never wastes ink. Here is the hidden meaning.  Please bear with me.  This is kind of esoteric.

Reality, for human beings, is made up of three domains:  1.  The domain of abstract thought; 2.  The domain of speech; and 3.  The domain of action.  

Although Levi Yitzchak does not describe it this way, think about human consciousness.  Our experience of reality is no more than electrical signals passing between neurons in different parts of our brains.  For those electrical signals to be translated into awareness, what we might describe as thoughts or feelings, we need to perform an act of translation. My mind compares these patterns of electrical signals with my previous experiences of electrical signals.  At its most basic level, that is what language is.

I see a creature moving.  It has four legs, fur, and pointy ears.  It makes a noise.  My mind tells me, “this is a dog.”

Why doesn’t my mind say “cat?”  Not because I have seen this particular animal before, but because I have previous experiences with other creatures which have been defined as dogs. Language is the act of defining abstract experiences by comparing them with previous experiences.  Language also enables me to communicate my memory of those experiences to someone else.

After I have translated my abstract thoughts into language, I can then act.  I can manipulate the physical world around me.

We operate in all three domains at all times.  

The mystic sees the first domain, that of abstract thought, as the highest.  The essence of God lies somewhere beyond, but it is the closest a human being can become to God’s domain.  In Kabbalah, God’s essence is described as the Ein Sof, which literally means, “there is no end.”  Or, it cannot be defined.  God is completely abstract.  No word will capture God’s essence. The ultimate goal of the mystic is to attach oneself to God.  This can only be accomplished through the first domain, that of abstract thought.

Now we come back to the head and the tail, the top and the bottom.  Each of the three domains has a head and a tail.  A person who ascends to the head of a lower domain touches upon the tail of the next higher domain.  This is how Levi Yitzchak understands the Torah’s language of head and tail, top and bottom. When the Jewish people is at its best, it approaches the head of the highest domain, abstract thought, and is closest to God.

Let’s bring this back down to earth.  Through our actions, our speech, and our thought, each of us has the capacity to be better.  Actions, speech and thought are related.  As we improve one, we begin to improve the next.  

I work on my physical actions with the world around me: How I treat people, how I earn and spend my money, how I express compassion.  When I achieve success with my actions, it then leads to my speech.

My spiritual health is also about the words that come out of my mouth.  Controlling speech can be even more difficult than controlling behavior.  How hard is it to not gossip: to use language that builds people up rather than puts people down; to only read words online that make me grow?

When I purify my speech, that is when I can begin to purify my thoughts.

Moses describes the ultimate spiritual blessing:  “The Lord will make you the head, not the tail; you will always be at the top and never at the bottom…”  When the Israelites fulfill their covenantal obligations, they will achieve the closest possible relationship with God. Rabbi Levi says that this is not only a lesson for the nation, but for each of us.

As we approach the new year, we are taking stock.  It might be helpful to understand ourselves as being comprised of these three domains of thought, speech, and action.  The religious goal, indeed the human goal, is to improve on all three.

At the Rosh Hashanah meal, whether we eat a sheep’s head, a ram’s head, a salmon head, or a Swedish Fish head, may it symbolize for us that the year to come will be one in which we are the head, not the tail, and always at the top, never the bottom.”

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September 14, 2019

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Ki Teitzei 5779 – Don’t Promise Presents, Be In The Present

There is a common Hebrew expression: Bli neder, which means “without a vow.”  Bli Neder, I’ll pick you up tonight at 7.  Bli neder, I’ll bring the money that I owe you this Thursday.  Bli neder, I’ll have my High Holiday sermons done on time.

One of the laws in Parashat Ki Teitzei deals with nedarim, or vows.  A vow works likes this.  I’ve got something big coming up, and I feel like I am going to want God’s help.  Examples could include: the birth of a healthy child, victory in war, a successful business deal.

So I make a vow, promising to bring a specific gift to God.  It could be a sacrifice, or a donation of money, livestock, or grain to the Temple.  I might even vow to refrain from a particular activity, such as drinking wine or getting a haircut.

The Torah deals with the laws of vows in Parashat Ki Teitzei here in Deuteronomy as well as in an entire chapter at the end of the book of Numbers.  A number of Psalms express vows as well.

This morning’s parashah dedicates three verses to the topic.  The first verse warns that anyone who makes a vow had better fulfill it as quickly as possible.  No procrastinating, or else that person will incur guilt. The third verse emphasizes that any vow that crosses a person’s lips must be fulfilled.  The Torah provides no mechanism for nullifying a vow.

In between these two statements, the Torah provides a hint: “you incur no guilt if you refrain from vowing.”  Wink. Wink. Note the double negative—no guilt if you don’t vow.  If we read into it a little deeper, the Torah is saying that since there is no obligation whatsoever for a person to make a vow, why would anyone put such a burden upon themselves?

Vows were apparently quite common in ancient times. There are several famous vows in the Bible.  The Judge Samson and the Prophet Samuel are both dedicated to a lifetime of service to God in fulfillment of vows made by their respective mothers. Thanks mom.

The Patriarch Jacob makes a vow in the book of Genesis when he is about to the leave the land of Canaan with nothing but the shirt on his back.  He declares that if God is with him, protecting him and eventually returning him home, then Jacob will be faithful to God and dedicate ten percent of his future earnings.

The most notorious vow in the Bible occurs in the book of Judges.  The Chieftain Yiftach, about to lead the Israelites in battle against the Ammonites, makes the following declaration to God:

“If You deliver the Ammonites into my hands, then whatever comes out the door of my house to meet me on my safe return from the Ammonites shall be the Lord’s and shall be offered by me as a burnt offering.”

Yiftach, it can be assumed, is thinking it will be a goat or chicken.

God is with Yiftach, and he defeats his enemies.  When the warrior returns home, who should run out of the house, dancing with a timbrel in her hands to celebrate her father’s great victory but Yiftach’s daughter, his only child.  Yiftach is crushed, but his daughter understands the seriousness of the vow, and insists that her father fulfill it.

The Rabbis are aware of vows as well—and they don’t like them.  Drawing on our portion, the Rabbis invent ways to nullify vows.  They dedicate an entire Tractate of Talmud to the subject.

At one point, the Talmudic Sage Rav Dimi takes it a step further, declaring that anyone who makes a vow is a sinner, even if that person fulfills it. He proves it from Ki Teitzei.  The Torah states “you incur no guilt if you refrain from vowing.”  The Torah implies, therefore, that ‘you do incur guilt if you don’t refrain from vowing.’

Oy.  So many double negatives.

What’s the big problem with a vow?  The medieval commentator, Nachmanides, does not mince words.  God takes no pleasure in fools who make lots of vows.  The problem, he explains, is that unexpected things get in the way of us fulfilling so many of our commitments.  When it comes to something as serious as a vow, saying “I meant to do it, but circumstances made it impossible…” is not good enough.  There are no excuses.

Building on this this, the nineteenth century commentator, Samson Raphael Hirsch, says that we have enough trouble with our actions in the present.  A vow adds extra obligations for some future time, when we have no idea what unexpected events may get in our way.  “We should rest content with directing [our] actions every moment of [our] present existence, living it as it should be lived.  Whatever we will be called upon to do in the future constitutes our duty then, without undertaking it in the form of a vow.”

In just under four weeks, we will gather together for Yom Kippur.  At the very beginning, before the holiday actually begins, we will chant Kol Nidrei.  In fact, we name the entire service Kol Nidrei.  Kol Nidrei means “All vows.” It is not a prayer, but rather a legal statement.  We declare that all vows, oaths, pledges, and so on that we make from this Yom Kippur and next Yom Kippur are officially annulled.  Nidrana la nidrei.  “Our vows are not vows.”

When Kol Nidrei first appeared in the 9th century, the Rabbis didn’t like it.  But it was too popular with people.

The idea behind Kol Nidrei is that words matter.  Life is unpredictable.  I can never know for certain that I am going to be able to fulfill in the future the commitment that I make today.  But I want to be able to start the new year with a clean slate.  Kol Nidrei enables me to do that, to not be held back by all of my failures.  

Better, as Hirsch, advises, to live my life in the present as it should be lived.  With integrity and honesty.

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September 7, 2019

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Shoftim 5779 – One Hand Has Not Spilled This Blood

Parashat Shoftim begins with justice.  It sets up the ideal of wise uncorruptible judges whose decisions are respected.  A society that does this, promises the opening of our parashah, will thrive on its land.

At the end of Parashat Shoftim, we are presented with a case about this limits of justice. The case is called the eglah arufah, “The Broken-Necked Heifer.”  Here is the scenario: a murdered body is found in the open, outside of city limits, and the killer cannot be identified.  Instead of filing it away as an unsolved mystery, respected elders from the area go out and measure the distance from the body to the surrounding towns.  Whichever settlement is nearest to where the body was found must then perform a ritual. The elders of the town take a heifer that has never been worked or carried a yoke.  They bring it outside the town to a nahal eitan, a wadi that flows year-round, on land that is not cultivated.  There, they break the neck of the heifer. Then, in front of priests from the tribe of Levi who have gathered especially for the occcasion, the elders of the town wash their hands in the water of the stream, and make a declaration:

Yadeinu lo shaf’khu et hadam hazeh, v’einayim lo ra’u—”Our hands did not spill this blood, nor did our eyes see it done.  Absolve, O Lord, Your people Israel whom You redeemed, and do not let guilt for the blood of the innocent remain among Your people Israel.”

In so doing, they remove the bloodguilt.  In Hebrew, the expression is v’nikaper lahem hadam  That should sound familiar.  nikaper is from the same root as kaparah, which is the same as Yom Kippur.  It means atonement, and it refers to the washing away of sin that is attached to our souls.

This would seem to suggest that the inhabitants of the nearby town bear a certain degree of guilt.  Otherwise, what need would they have for atonement?

The Jerusalem Talmud offers two explanations, one from the Rabbis of the land of Israel, and the other from the Rabbis of Babylon.  In Israel, the Rabbis understand the ritual to be a reference to the murderer.  The elders declare: “the murderer never came through our town.  We never saw him.  He was not in our jail and we did not let him go free.”

The Rabbis of Babylonia suggest that the ritual refers to the victim.  “The victim never came through our town.  Otherwise, we would have surely taken care of him.  We would never have failed to offer him food, or ensure his safe passage.”

Both explanations involve the elders claiming that their communities are the kinds of communities that take responsibility for what happens in their town.  They do not allow criminals to walk the streets, and they do not neglect their obligations to take care of those who live on the margins.

In other words, they are saying, “we are fine, upstanding people.  People in our town do not do things like this.  We don’t let anyone slip through the cracks.  We didn’t do anything.  We didn’t see anything.”

This still does not solve the problem.  If they did everything they were supposed to do, why do they need atonement?

Rabbi Yitzchak Meir Bunim offers a creative explanation, suggesting that they may not be as innocent as they seem to claim. He points out a grammatical problem with one word in the declaration by the elders.  “Our hands did not spill this blood.”  yadeinu lo shaf’khu et hadam hazeh.

The problem is with the word shaf’khu, which is a verb meaning “spill.”  The Torah uses what the commentator Ibn Ezra describes as a really ancient spelling.  Instead of ending with a ו, it ends with a ה.  

שפכה

The vowels, according to the Masoretic text, are שָׁפְכֻה,
rendering the pronunciation shaf’khu.

If we read it like it is written in later Hebrew, it would say shaf’khah, which is singular, as in “our hand has not spilled this blood.”  Just one hand.  Not two. Why does this matter?

It is impossible for the elders to say, “everything we did, we did with both of our hands.”  Rather, they say, “What we did, we did with just one hand, because there will always remains some degree of guilt that we did not do enough.”

It’s such a clever insight on so many levels.  As human beings, we are self interested creatures.  We don’t like to admit guilt.  

A parent walks into the room and sees red crayon marks all over the walls.  She turns to her three year old, who is holding a red crayon, and asks, “Why are there red crayon marks on the wall?”

What does the three year old say?

“I didn’t do it.”

Our gut reaction is always to say “I didn’t do it.”

In the case of the eglah arufah, the crime has been committed nearby.  Suspicion naturally falls on those who are closest.  What is the declaration that they make? It’s the same as the three year old with a crayon.  “We didn’t do it.” But that does not mean that we don’t bear some responsibility.  We might not have been the ones who committed the murder, but can we really say that we were paying close enough attention to what was happening around us?

Did we take responsibility for our community—both by making sure it was safe, and by taking care of the people who needed help?  Did we open our eyes and take notice of the very individuals who tend to not get noticed? When tragedies occur, are those who claim to be innocent bystanders really innocent?

I was listening yesterday to a radio show on which people were calling in with reactions to the split verdict in the Ghost Ship fire.  People were rightfully angry about how such an unsafe situation could be allowed.  There was plenty of discussion about who should be held responsible, beyond just the two people who were put on trial. But of course, this is all after the fact—after 36 people died in a fire that should never have broken out.  But that is the way it goes with tragedies.  It is easy to cast blame after the fact.  

But maybe we should admit, as a society, that we never do everything we could have to build the kind of caring community that the Torah sets up as an ideal.

The Rabbis themselves acknowledge this.  In the second century, the Mishnah (Sotah 9:9) declares:  “When the murderers increased, the rite of the eglah arufah was abolished.”  The ritual itself became meaningless. Communities could not honestly claim that they had done everything that they could, or should have.

Parashat Shoftim begins with the ideal of justice.  It ends with a recognition of human imperfection.

Perhaps we should be honest enough to say, instead of “I didn’t do anything.  I didn’t see anything”  that “Maybe I looked the other way.  Perhaps I could have done more.”

That would be a great step for a society that strives to move towards justice.

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August 24, 2019

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Falling Into Prayer – Ekev 5779

At the end of Parashat Ekev, as Moses is exhorting the Israelites to remain faithful to God and the covenant, he makes a speech that may sound familiar:

וְהָיָ֗ה אִם־שָׁמֹ֤עַ תִשְׁמְעוּ֙ אֶל־מִצְוֹתַ֔י אֲשֶׁ֧ר אָנֹכִ֛י מְצַוֶּ֥ה אֶתְכֶ֖ם הַיּ֑וֹם לְאַהֲבָ֞ה אֶת־י-ְהוָֹ֤ה אֱ-לֹהֵיכֶם֙ וּלְעָבְד֔וֹ בְּכָל־לְבַבְכֶ֖ם וּבְכָל־נַפְשְׁכֶם:

“Now it shall be, if you listen to my commandments which I command to you today, to love the Lord your God, and to serve Him with all of your hearts and with all of your souls…”  (Deut. 11:13)

We know this passage as the second paragraph of the shema.  It is the one that we usually recite silently.  Notice that it is not the language of prayer at all.  It is Moses telling the Israelites to listen to and serve God.  If they do, they will be rewarded with abundance.

So how did it come to be included, not just in our prayers, but in the Shema, which serves as the central biblical passage of Jewish worship, the anchor of our service?

The answer is found in the Talmud (BT Ta’anit 2a).  The word avodah, meaning service, usually refers to the Temple rituals: Priests and Levites offering daily animal sacrifices. But here, Moses modifies the usual expression when he speaks to the Israelites: וּלְעָבְד֔וֹ בְּכָל־לְבַבְכֶ֖ם — “to serve Him with all of your hearts.”  He is not talking about Temple rituals and animal sacrifices.  The Talmud cites this phrase and then asks: Eizo hi avodah she-hi ba-lev?  What kind of service is performed in the heart? Hevei omer: zo tefilah.  You must say that this is referring to tefilah — prayer.

Maimonides summarizes the matter succinctly, as usual.  He declares that “It is a positive commandment to pray every day, as it says: and you shall serve the Lord your God”  (Ex. 23:25).  He then cites this passage in the Talmud to explain that the service in question is the service of the heart; that is to say, tefilah.

The Torah is silent regarding the specific content of our prayers.  Nowhere does it say that we need to recite these particular words that appear in the prayer book.  Our siddur is the product of human beings striving to express themselves to God.

So what is tefilah?  What is prayer?

There are a few examples of prayers in the Torah.  As it so happens, one of them appears earlier in this morning’s Torah portion.

As Moses continues his recounting of the Israelites’ journey through the wilderness over the previous forty years, he comes to the episode of the Golden Calf. As you may recall, the Israelites encountered God at Mount Sinai.  That is when they received the Ten Commandments.  We read them in last week’s parashah.  The first two commandments are:  I am the Lord your God.  You shall have no other gods before Me.  And, Don’t worship idols.

Forty days later, there is a bit of confusion about when—or whether—Moses is coming back.  So what do the Israelites do?  The obvious thing: build a statue of a golden calf and start worshipping it.

For those keeping track, they have just broken commandment numbers one and two.  Not a good start.  It sure didn’t take them long, did it?

Now, Moses has to intercede on the people’s behalf to prevent God from annihilating them.  He describes what happened in his own words:  וָאֶתְנַפַּל֩ לִפְנֵ֨י יְהֹוָ֜ה — “I threw myself down before the Lord like the first time; forty days and forty nights, bread I did not eat, and wine I did not drink, on account of all your sins that you committed…”  

The Torah likes to the play with language.  It is full of puns and patterns.  Hebrew is built on three letter root words.  Most verbs, nouns, and adjectives are constructed by manipulating those three letters in various ways.  In this case, the root for אֶתְנַפַּל is נפל, which in english means “fall.”  אֶתְנַפַּל makes it reflexive and forceful – I threw myself down.  

While נפל is a pretty common root word in the Bible, אֶתְנַפַּל is not.  Moses did not just fall to the ground.  He threw himself to the ground.  But there is more.  God was also furious with Aaron for his role in constructing the Golden Calf.  Moses again describes his courageous actions: וָאֶתְפַּלֵּ֛ל גַּם־בְּעַ֥ד אַהֲרֹ֖ן  — “Then I prayed on behalf of Aaron…”

Here, the word is אֶתְפַּלֵּל.  Sounds a lot like אֶתְנַפַּל.  But with one letter different.  Instead of נפל, the root is פלל, which in English means “intercede” or “pray.”

A few verses later, Moses recites the actual prayer that he had used to intercede for the Israelites and for Aaron.  Again, he pairs the words אֶתְנַפַּל and אֶתְפַּלֵּל.  “When I threw myself before the Lord… because the Lord was determined to destroy you, I interceded to the Lord and said…” and so on.

The Torah, very deliberately, juxtaposes these two nearly identical words to tell us that there is a connection between praying and throwing oneself on the ground.

It is clear, from this and other passages, that tefilah involves directing one’s words to God.   Looking at the various prayers that appear in the Bible, they tend to involve consistent themes.  The worshipper praises God, reflecting on God’s power and might.  Usually God is addressed as compassionate and forgiving.  Those are the qualities the worshipper is hoping to awaken.  After praise comes request.  The worshipper asks for something: a child, healing, mercy, victory.

In this passage, Moses asks God to have mercy on the Israelites and Aaron and forego the plan to destroy them.  But with the added element that he physically throws himself on the ground.

What does throwing oneself on the ground mean?  It is the most extreme form of bowing: full prostration, which nowadays we only perform during the High Holidays. It is a physical expression of humility: to lower oneself as close to the ground as possible.  It would certainly convey that message to the recipient of the prayer.

Think also about the effect that it would have on the worshipper.  How is the meaning of Moses’ words enhanced by him saying them with his face in the dirt, as opposed to if he had been standing tall?

To really pray, we have to first become aware that we are, in fact, powerless before our Creator.  The true act of service of the heart, real prayer, can only come from a position of losing oneself, of putting everything on the line, honestly and openly.  

Moses’ throwing himself on the ground is his way of praying with his whole self.  Literally, his entire body.  His physical posture contributes to his emotional state.  Ironic that, in order to most fully serve God with his heart, he has to also use his body.

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Just Beginning to See – Va-Etchanan 5779

In my high school Humanities class, I remember being very impressed when I learned about the Socratic Paradox: “To know what you do not know, that is true knowledge.”  In fact, I discovered recently, Socrates never said such a thing.

The idea may come from a passage in Plato’s Apology.  Socrates gets into a discussion with a man who is reputed to be wise.  He walks away from the encounter disappointed.

“I am wiser than this man,” he muses, “for neither of us appears to know anything great and good; but he fancies he knows something, although he knows nothing; whereas I, as I do not know anything, so I do not fancy I do. In this trifling particular, then, I appear to be wiser than he, because I do not fancy I know what I do not know.”

In Greek philosophy, the the hero of wisdom is Socrates.  He is so wise, because he knows that he does not know anything.

The Jewish equivalent is, of course, Moses.

At the very beginning of this morning’s parashah, Va’etchanan, Moses describes to the assembled Israelites how he tried to convince God to change the verdict against him.  He pleads to be allowed to enter the Promised Land.

Moses’s formal request begins with praise.

אֲדֹנָי יֱ-הֹוִה אַתָּה הַחִלּוֹתָ לְהַרְאוֹת אֶת־עַבְדְּךָ אֶת־גָּדְלְךָ וְאֶת־יָדְךָ הַחֲזָקָה

“My Master, Adonai, You Yourself have begun to show Your servant Your greatness and Your strong hand”

Why does Moses include the word, hachilota—”you have begun.”  He could have just said. “You have shown Your servant Your greatness and Your strong hand.”  Since no word in the Torah is superfluous, it must add something important.

To understand the p’shat, the plain sense meaning of the expression, we have to look at this passage in its context.  Earlier in Sefer Devarim, the Book of Deuteronomy, Moses has recounted the Israelites’ travels through the wilderness over the previous forty years.  He has already used variations of the word hatchalah, meaning “beginning.”

The Israelites’ conquest has begun on the Eastern side of the Jordan River.  They have been victorious over King Sihon and the Amorites, as well as King Og and the Bashanites, capturing their lands. Two and a half Israelite tribes step forward, requesting permission to settle in the newly acquired lands:  Reuven, Gad, and half of Menashe.  This territory will become part of the new nation.  God instructs Moses.  Re’eh hachiloti—”See, I begin by placing Sihon and his land at your disposal.”  Hachel rash!—”Begin the occupation; take possession of his land!”

As Etchanan opens, the conquest has already begun.  The Israelites, with God’s blessing, are on a roll.  So Moses is thinking, “The Lord must be in a pretty good mood.  Now would be a good time to ask for my punishment to be lifted.” He signals this hope in the language of his prayer:

My Master, Adonai, You Yourself have begun to show Your servant Your greatness and Your strong hand, for what god is there in the heavens and on earth who could do like Your deeds and like Your might?  Let me, pray, cross over that I may see the goodly land which is across the Jordan, this goodly high country and the Lebanon!  (Deut. 3:24-25)

Moses sounds really hopeful.  He is not asking for much; just to look at the land, to see how good it is.  He is not going to touch anything.  Promise.

Even this is too much.  “But the Lord was wrathful with me because of you,” he tells the Israelites, “and he did not listen to me.  And the Lord said to me, Rav L’kha—Enough for you!  Do not speak more to Me of this matter.  Go up to the top of the Pisgah, and raise your eyes to the west and to the north and to the south and to the east and see iwth your own eyes, for you shall not cross this Jordan”  (Deut. 3:26-27)

Such a disappointing answer for Moses.

Reading this passage out of its context, the Baal Shem Tov, the eighteenth century founder of Chasidism, teaches a deeper lesson about Moses’ request.  

“You Yourself have begun to show Your servant Your greatness and Your strong hand.”

Moshe Rabeinu was the greatest of all prophets.  Not only does he receive the Written Torah at Mount Sinai, he also receives knowledge of every single innovation that future scholars are destined to discover.  As it says in the Talmud, “There is nobody greater in good deeds than Moshe Rabeinu.”  (BT Berachot 32).  Despite all of this, Moses still stands at the very beginning.  So he says to God:  “You Yourself have begun to show Your servant Your greatness and Your strong hand.”

Moses is not referring to the conquest of the land.  He is referencing something much greater: the mysteries of creation, the wonders of the universe, the nature of good and evil, the purpose of human existence.  Moses, the greatest of all prophets, has only caught a glimpse.  Nearly 120 years old, he still stands at the beginning.  Adayin hu omed bahat’chala.

Here is Moses, at the end of his life, acknowledging to God, “I have only just started learning these mysteries.  I want to know more.”

God responds, perhaps not with so much anger: rav l’kha—”it is enough for you.  There is a limit to what the human mind, even yours, can comprehend.  Ascend the highest peak, and look in every direction.  You will see everything that you are capable of seeing.  But you cannot cross over.”  In other words, you cannot increase your wisdom.

Moses is the paradigm for the ideal human beings.  He lives for 120 years, which the Torah identifies as the upper limit of human life.  He achieves the greatest wisdom of which human beings are capable, and he demonstrates the highest imaginable levels of virtue.  

His struggles, as creatively interpreted through Jewish tradition, are universal human struggles.  Here, at the end of his life, he realizes that he is just starting.  There is so much that he does not yet know.

This humility about the limits of knowledge is so important.  It is what drives scientists to uncover how our universe works.  It is what drives curiosity and growth.  Someone who thinks he or she has all the answers, ironically, has none.

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August 10, 2019

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Moses: A Man Of Words – Devarim 5779

Today, we begin reading the last of the five books of the Torah.  Sefer Devarim, the Book of Words.  It is a fitting title.  Unlike the previous books, there is not much narrative that takes place.  The Israelites do not travel.  Nobody challenges Moses’ authority, or defies God’s instructions.  No idolatrous nation attacks the Israelites.  Devarim is just a book of words, speeches.  Speeches by Moses, in fact.

This is the only book in which the narrator is Moses himself, speaking in the first person.  The other four books are written from the perspective of an unnamed, anonymous third person speaker.

Devarim takes place on the Eastern banks of the Jordan River, in sight of the land of Canaan.  Moses is nearly 120 years old.  He knows the end is near.  This is his final opportunity to prepare the Israelites for what will come next.  Sefer Devarim is Moses’ swan song, his “valedictory,” as described by Jeffrey Tigay.  But there is mysterious contradiction in the opening of this book.

What do we know about Moses as a person?  The Torah describes him as the greatest prophet to ever live.  He is the ideal human.  Practically perfect in every way.

The Torah specifies just a single flaw in Moses.  He identifies it himself, at the very beginning of his career.  At the burning bush, when God first appears to Moses and gives him his commission, Moses tries to get out of the job.  This is how the Torah describes it:

Moses said to the Lord.  Please my Lord, I am not a man of words, neither yesterday nor the day before that, nor ever since Your speaking to Your servant, for heavy of mouth and heavy of tongue am I.  (Exodus 4:10)

Lo ish devarim anokhi, “I am not a man of devarim, words.” Now listen to the opening verse of Sefer Devarim, the Book of Words:

These are the words that Moses spoke to all of Israel on the other side of the Jordan, in the wilderness, in the Aravah between Suf and between Paran, and between Tofel and Lavan and Chatzerot and Di Zahav.

Eleh ha-devarim asher diber Moshe, “These are the devarim, the words, that Moses spoke.” Moses, who is not a man of words, has now become one—an incredible feat for someone who is heavy of mouth and tongue. How does he make such a transformation?

A Midrash explains that “when [Moses] became worthy of Torah, his tongue was healed and he began to speak devarim.” The mouth that said “I am not a man of words” at the burning bush is the same one that now fills a book with words. If that is the case, why have we not heard about it until this moment?  After all, Moses received the Torah on Mount Sinai nearly forty years earlier.  He should have already become a man of words.

In fact, says the fourteenth (1320-1376) century commentator, Nissim ben Reuven of Girona, known as the Ran, Moses was not healed until this moment. The Ran teaches that, until now, Moses had not been an eloquent speaker.  This was deliberate, to ensure that everyone knew that whenever he spoke, he was not using his rhetorical skills, his “glib tongue,” to trick them.  It could only be that the Shechinah was speaking through him.  The content of his words came directly from God.  His disability proves his authenticity.

But Sefer Devarim is different.  God barely speaks in this book.  It is all Moses.  For this, rhetoric matters.  He needs to speak with eloquence if he is going to convey a message to the children of those who left Egypt.  These are people who did not experience first hand the miracles of the plagues, the splitting of the Sea of Reeds, and the revelation at Mount Sinai.

For this task, Moses’ speaking difficulties will be a detriment.  That is why God waits until now, the end, to heal him.  We might even say that Moses did not become fully worthy of the Torah until this moment.

Verse 5 recapitulates the opening line of the book, “On the other side of the Jordan, in the land of Moab, “Moses expounded upon this Torah.” He begins with history.  He describes what has happened for the previous forty years, since the Revelation at Sinai.  Moses reminds us of the mistakes we made, and encourages us to remain faithful to God.  He lists the commandments that we are to follow as covenantal obligations.  All with devarim.

This is an important step.  The previous books describe God’s revelations to Israel through Moses, as they are happening.  Now, Moses must translate those previous revelations for a new generation, in language that they can understand and in terms to which they can relate.

That is the meaning of Devarim.  Devarim are not merely words.  Words, or language, is merely a tool that we use to transmit ideas to one another.  For this, a successful communicator or teacher must always take into consideration the particular needs of the listeners.

This is the transformation that Moses undergoes on the Eastern banks of the Jordan.  He expounds upon the Torah to future generations of Israel.  Perhaps this is the moment when he earns the title Moshe Rabeinu, Moses our teacher.  

Ever since, we have been a people of devarim.  What I am delivering right now is called a D’var Torah.  A “word of Torah.”  It is not merely reading from our sacred text, as the term “word of Torah” might literally imply.  The purpose of a D’var Torah is to translate God’s revelation into words that speak to us today, in this moment. That is why, when we publish our chumashim, we typically include commentaries along with the sacred text itself.  The text of revelation must be interpreted.  

We always read Parashat Devarim on the Shabbat before the fast of Tisha B’Av.  This year, today is itself Tisha B’Av, so we push its observance forward by one day. It is a day of memory and mourning.  We recall the destructions of the first and second temples, the expulsion from Spain, the fall of the Warsaw Ghetto, and many other tragic events of our people through the millenia.

We remember these events through devarim.  The primary devarim that we use is the Book of Eichah, Lamentations.  These evocative words were written by Jeremiah to describe the horrible devastation and suffering of our ancestors during the destruction of Jerusalem and the Temple by the Babylonians in 586 bce.  But the words are crafted so artfully that they could just as easily be describing any of the later tragedies of our people.

It is through devarim that we remember.  Each year, we read the same devarim, but they mean something a little different.

Tonight, as we chant Jeremiah’s devarim, we think not only about the tragedies of the past, but also of the present.  This year, we have mourned brothers and sisters of the Jewish people who were murdered in Pittsburgh and Poway al kiddush hashem, in sanctification of God’s name.  And dozens of other senseless victims taken in the last week in Gilroy, El Paso, and Dayton.

We know how important it is to remember.  Memory enables us to make meaning of our lives, and to be better. It is a lesson that we learned from Moshe Rabeinu, who taught us, before we entered the promised land, the importance of remembering the tragedies along with the blessings.  Tonight and tomorrow, we will remember the tragedies.  May we also remember the blessings.

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September 2, 2018

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Don’t Take Time and Space for Granted – Ki Tavo 5778

The universe is inconceivably big.  It has a diameter of 91 billion light years.  In miles, that is approximately 54, followed by 22 zeros.  The universe is comprised of between 100 and 200 billion galaxies.  Our Milky Way Galaxy has about 100 billion stars.  The closest star to the earth is a little bit more than four light years away.

Planet Earth has a number of rare features that have made the development of life possible.  Moving tectonic plates enable the formation and maintenance of an atmosphere.  The climate is not too hot and not too cold.  The moon is unusually large, blocking just enough solar radiation to allow genetic mutation to occur at a reasonable pace.  Earth’s orbit around the sun is pretty close to circular.  The sun itself is larger than most stars, and smaller than others.  In so many ways, the earth is “just right.”

The earth formed about 4.5 billion years ago.  Life came into existence around 4 billion years ago.  More than 99% of all species that ever lived on Earth are now extinct.  Homo Sapiens emerged about 300,000 years ago.  Our ancestors began to develop modern ways of thinking, reflected by the use of complex tools, cave painting, big game hunting, and ritual burial.

3,800 years ago, Abraham heard the voice of God blessing him with the promise of land and offspring.  3,300 years ago, Moses led our people out of slavery in Egypt to the land of Israel.  Solomon built the Temple.  It was destroyed, rebuilt, and destroyed again over the next thousand years, sending our ancestors into exile.  That exile ended in 1948, and here we are…

…residing in the most prosperous country in the history of the planet, and for all we know, the universe.  Here in Silicon Valley, we have a perfect climate.  We have air conditioning.  In about 45 minutes, we will sit down to have lunch together, and there will probably be enough food for us to go back for seconds and thirds.

How incredibly unlikely it is that each one of us is here right now.

Is there an appropriate response to the unfathomably minute possibility of my existence?

If such a response exists, I am not sure what it is.

We humans have a built-in tendency to take our lives for granted.  This is one of Moses’ concerns as he prepares to make his final goodbyes to the Israelites, whom he has led for the previous forty years.  Over the course of Deuteronomy, he has been delivering his final series of instructions to those who will be entering the Promised Land without him.

In this morning’s Torah portion, Ki Tavo, Moses lays out a few ritual ceremonies that the Israelites will have to observe.

The first of those ceremonies will not be performed by the generation that stands before him.  True, they will enter the land, but it will take several more generations until their descendants complete its conquest, and even longer before they build the Temple.

That is the time to which Moses refers.  Israelite farmers will plant their seeds and harvest their crops.  When the first fruits of those crops come in, the farmer will place it in a basket and bring it to the Temple in Jerusalem, identified by Moses as “the place where the Lord your God will choose to establish His name.”  The farmer will present the fruit to the priest on duty and make a declaration:

I acknowledge this day before the Lord your God that I have entered the land that the Lord swore to our fathers to assign us.”  (Deut. 26:3)

The priest will take the basket from him, and the farmer will continue:

My father was a fugitive Aramean. He went down to Egypt with meager numbers and sojourned there; but there he became a great and very populous nation. The Egyptians dealt harshly with us and oppressed us; they imposed heavy labor upon us . . . and the LORD heard our plea and saw our plight, our misery, and our oppression. The LORD freed us from Egypt . . . He brought us to this place and gave us this land, a land flowing with milk and honey.  Wherefore I now bring the first fruits of the soil which You, O Lord, have given me.  (Deut. 26: 5–10)

This speech integrates themes of agriculture with history.  This is one of the great theological innovations of the Torah: God is both the Creator of the natural world, as well as the God of history.

We see this throughout the Torah, as the various agricultural holidays are infused with historical significance.  Passover, the Spring festival to celebrate the beginning of the agricultural season, is also the holiday celebrating freedom from slavery.  Succot, the Fall harvest festival, also commemorates the booths that our ancestors dwelt in while they were in the wilderness.

This is what Moses wants to ensure that future Israelites will remember.  He wants future Israelites to know:  My ancestors were once slaves in Egypt.  God brought them out, enabling me to be born in freedom.  I am here now because of God’s promise to my ancestors.  Without them, I would not be in this land, this land that is so prosperous that it flows with milk and honey. 

Notice that the farmer never makes any reference to all of his hard work: the early mornings planting and weeding; the backbreaking labor; the difficult journey from his home to the Temple.  That is not the point.  The point is for him to acknowledge everything that has happened to bring him to this blessed moment.  

Moses knows that future Israelites will have a tendency to take two things for granted.  One, that he lives in a fortuitous time period.  Two, that he lives in a fertile place.

In other words, Moses worries that the farmer will take time and space for granted.

It is not just ancient Israelite farmers who tended to take their existence in time and space for granted.  We all do.  When we are successful, we tend to overweight the impact of our own hard work and underweight the countless factors outside of our control that made our success possible.

The purpose of much of Jewish ritual is to alert us to the many blessings that we enjoy.  In our daily prayers, we acknowledge God as the Creator of the universe, the heavenly bodies, and the daily rising and setting of the sun and moon.  

We acknowledge the incredible way in which the human body is put together.  We give thanks for knowledge and understanding.  We praise God for moments of our ancestors’ redemption, without which we would not be alive.

Before eating a piece of bread, we recite a blessing indicating that it is God who “brings forth bread from the earth.”  Even though this is not literally where bread comes from, we remind ourselves of the many natural miracles that must occur so that human beings can produce food that is delicious and nutritious.  

People who express gratitude are happier, and experience life as more meaningful.  I suspect, as well, that those who are conscious of how undeservedly blessed they are tend to behave towards others with more generosity and compassion.

So, is there an appropriate response to the unfathomably minute possibility of our existence?  Let’s start with simply trying to acknowledge it:

The universe has conspired to bring me to this moment in time and space.  And for that I am grateful.

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August 28, 2018

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The Beautiful Prisoner, The Great War, and the Yetzer Hara – Ki Teitzei 5778

This morning’s Torah portion, Ki Teitzei, contains more mitzvot, more commandments than any other parashah in the Torah.  Many of those mitzvot have direct applications to our lives today.  It is easy to see how these are timeless principles by which we ought to lead our lives.

Other mitzvot seem to be better suited for a different time and place.  In fact, we sometimes encounter mitzvot that seem to run counter to what we understand to be proper, moral behavior.

Before judging too harshly, we must remember to read on multiple levels.  Our first task is to try to understand what this law meant in the time and place in which it was given.  The Torah is a very old book.  Ancient social norms were vastly different.  We cannot judge ancient practices by modern sensibilities.

The second way of reading the text is to see it through the lens of Jewish tradition.  It turns out that our ancestors were also disturbed by some of the same things that disturb us, and they often came up with creative ways to interpret or allegorize difficult texts that made them meaningful and applicable to life in their own day.

Then, we can begin to consider how this difficult mitzvah might have meaning for us today.

The first mitzvah in today’s Torah portion is of this kind.  The opening verses describe the treatment of female captives by victorious Israelite warriors.  At a time when plunder and rape were standard practice in warfare, the Torah places extreme limits on the behavior of Israelites soldiers.

If a soldier takes a beautiful woman captive whom he desires, he cannot touch her.  Instead, he must bring her into his house.  She must shave her head, trim her nails, and go into mourning for thirty days.  Basically, he makes her as unappealing as possible.  Then, if the soldier still desires her, he must marry her.  If not, she goes free.

The Torah’s restriction on the behaviors of Israelite soldiers stands out in the history of human warfare until modern times.  Nowadays, the Geneva Convention includes accepted laws of ethical behavior in war which are agreed to by most nations in the world, including Israel.

The Torah’s regulations, therefore, would seem to be no longer relevant.

Rabbi Isaiah HaLevi Horovitz was a Polish Rabbi who moved to Tzfat in the Israel in 1621.  He was an important Kabbalist who had a great influence on Chasidism.   As is often the case, Rabbi Horovitz is best remembered not by his name, but by the acronym of his major literary work, the Shlah.  The Shlah, Shnei Luchot HaBrit, meaning “Two Tablets of the Covenant,” is a commentary on the Torah that was popular among Ashkenazi Jews.

In discussing the opening theme of Parashat Ki Teitzei, the Shlah acknowledges that the pshat, or plain meaning of the Torah, indeed describes laws and limitations of warfare.

But that is not what interests him.  The text hints at a more personal lesson pertaining to each individual human being.  The law about the woman captured in war is an allegory for an internal war that all of us wage.  It is the greatest war of all, the war against the yetzer hara, the evil inclination.

The Shlah tells a story:

There was once a pious man who encountered some soldiers returning from a war against their enemies.  With puffed up chests, they were carrying spoils that they had captured during the fierce battle.

He said to them: “You have just returned from the small war with your spoils.  Now prepare for the big war!”

“Big war?” they asked, looking around in surprise, as if there was an impending sneak attack.  “What are you talking about?”

To which he responded: “The war of the yetzer and his legions.”

The Shlah explains that when the Torah speaks of the soldier’s desire for the beautiful woman taken captive, it is really presenting an allegory about the pull of our urges.  Those urges are hard to resist.  They lead us down paths of self-destruction.  The Shlah equates committing a sin to losing a battle against our urges.  

In a real war, if one is victorious against one’s enemies over the course of a few battles, the enemies (usually) learn their lesson and surrender.  But the big war against the yetzer hara never ends, whether or not we are victorious in its individual battles.  That is the great war which all of us wage.

The soldier’s feelings of desire for the beautiful woman are a metaphor for our attraction to those urges that tempt us.  We desire many things: good food and drink, honor, wealth, possessions, power, recognition, sex.  The ultimate goal is not to suppress those feelings entirely, but rather to channel them appropriately.  The Shlah suggests that we do so by figuratively paring the nails and trimming the hair.  In other words, by making those desirable things less desirable.

The Torah recognizes that these urges are real, and in some senses are even good.  For without the Yetzer HaRa, the midrash teaches, nobody would ever build a house, get married, have children, or conduct business.  (Genesis Rabbah 9:7)

To this list we can add that the proper channeling of our urges leads to healthy living, meaningful friendships, supportive communities, joy.

Through this channeling of our urges, what might have been a sin is transformed into a merit.

The Talmud teaches that “in the place where those who have repented stand, those who are completely righteous cannot.”  (BT Berachot 34b)  The Shlah explains that because the penitent person has made mistakes, worked on them, and trained himself in the ability to resist temptations, he is thus better equipped to deal with new temptations when they arise.

It is the middle of the month of Elul.  We are just over two weeks from Rosh Hashanah, followed ten days later by Yom Kippur.  This is the time when we are supposed to be focused on cheshbon hanefesh, taking account of our souls.

Where am I in life right now?

Have I wronged anyone and not made amends?

Did I make promises that I have not kept?

Have I gone astray in other ways?

In some way, our yetzer hara is mixed up in every mistake or transgression we have committed.

My wrongdoing, my inability to control my desires, comes from selfishnesss and greed, from putting my own desires ahead of the needs of others.  My yetzer hara was victorious whenever I expressed my anger in ways that were hurtful to others, whenever I allowed my fear to cause inaction or laziness.

Let us use this annual time of introspection and life review to understand those moments when our urges have gotten the better of us.  What can we do to channel those desires into constructive actions that bring us closer to our loved ones, our friends, our community, and God?

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August 17, 2018

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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