The Ship of Theseus – Rosh Hashanah 5779

You may recall the stories of the ancient Greek hero, Thesesus.  He is the legendary founder of Athens.  Among his many adventures, Theseus’ most famous exploit is his defeat of the Minotaur, the half-man, half-bull beast that dwelled in the labyrinth created by Daedalus on the Isle of Crete.  

He returned home with the rescued youth of Athens on a ship with thirty oars.  The people of Athens, to commemorate Theseus’ great victory, preserved the ship in the Athenian harbor to serve as a memorial.

According to the ancient Greek and Roman historian, Plutarch, the ship was maintained for several centuries.  As we all know, things age, especially ships kept in the salty water, and humid air of the Mediterranean.  Over times, the wooden planks of Theseus’ ship began to rot.  They were replaced, as needed.  This went on for years, then decades, and then centuries.

Eventually, Plutarch explains, the ship gave rise to a question posed by the philosophers: If every single plank, oar, rudder, and piece of rigging from Theseus’ original ship has been replaced, can it still be considered to be Theseus’ ship?

This question came to be known as the Ship of Theseus paradox.

Let’s extend the paradox to rock and roll.

Quiet Riot is a heavy metal band from my childhood.  I remember listening to their 1983 hit, Bang Your Head, on the school bus with my friend Brian when I was in second grade.  We would bank our heads against the padded seat in front of us whenever they got to the chorus.

When Quiet Riot plays Bang Your Head today, they sound just like I remembered them, even though the only band member that was with them in 1983 is the drummer, and even he was not part of the founding lineup.  Are they still Quiet Riot?

It is a deep philosophical quandary.

Let’s shift the question to the human body.  We each are made up of about ten trillion cells.  It is often claimed that it takes seven years for every cell in the human body to regenerate itself.

It turns out, that is not quite true.  Our cells die and are regenerated at different rates.  The cells of the stomach lining, for example, are replaced every couple of weeks.  The same is true of our skin.  The liver takes about two years.  Bones take about ten years to regenerate.  Cardiomyocytes, in the heart, regenerate at about 1% per year, but the rate slows as we age.  A seventy five year old person would still have more than half of the heart cells that he had at birth.  For some parts of our body -Tooth enamel, the cells on the inner lens of the eye, and the neurons of the cerebral cortex–the cells we are born with have to last our entire lives.

On average, though, we could say that we are approximately eleven to fifteen years old.

I am in my 40’s.  Does that mean I am on my third life, or does who I am transcend the physical parts of which I am comprised? 

These are really questions about the nature of identity.  Am I the collected sum my parts?  If so, perhaps the gradual replacement of those parts transforms me into a new person.  Or maybe, since the same DNA directs the regeneration of each of my cells, I remain the same person.  My DNA is the genetic algorithm that defines me.

Or, perhaps identity has nothing to do with the physical body.  Perhaps identity is rooted in consciousness, summarized succinctly by Descartes’ Cogito ergo sum – “I think, therefore I am.”

Although still in the realm of science fiction, we could imagine the future possibility that a person’s consciousness could be uploaded into a computer, or into an artificial body.  Would this be the same person?

Might consciousness have something to do with the soul?

Maybe each moment in a person’s life is a distinct slice of existence, a solitary point in space-time, with no two slices being the same.  We are constantly changing and reforming into new entities.

Or, we could go four-dimensional, and imagine a series of slices stacked together, forming a river through time in which each individual slice is distinct from a three dimensional perspective, but identical from a four-dimensional perspective.

It is enough to make you want to “bang your head.”

Our Jewish tradition asks a similar question.  Am I the same person, year after year, throughout my life?  The answer: it is up to me.

The great medieval Rabbi, physician, philosopher, and community leader, Maimonides, suggests a number of practices that those who are truly serious about teshuvah, repentance, might undertake.  Those practices include: crying out loud to God with real tears, going out of one’s way to avoid situations in one has earlier sinned, and even possibly going so far as to pick up and move to a new city.  Finally, Maimonides suggests that a would-be-penitent might change his or her name, as if to say, “I am a different person.  I am no longer the one who perpetrated those misdeeds.” (Rambam, Mishneh Torah, Hilchot Teshuvah, 2:4)

This is kind of the opposite of the Ship of Theseus.  The person’s physical body has remained exactly the same, but the identity is new.

These practices that Maimonides mentions are really just superficial changes.  Real teshuvah, he explains in detail, involves a much deeper transformation.

In 1944, Rabbi Joseph Soloveitchik wrote a book called Halakhic Man.  In it, he connects a human being’s capacity to create to teshuvah.  He says that repentance is itself an act of self-creation.

The severing of one’s psychic identity with one’s previous ‘I,’ and the creation of a new ‘I,’ possessor of a new consciousness, a new heart and spirit, different desires, longings, goals—this is the meaning of that repentance compounded of regret over the past and resolve over the future. (110)

In short, a person who achieves teshuvah creates herself as a new individual.

Imagine a sinner.  In other words, every one of us.  That person is characterized by the term rasha – wicked.  What does it take for that person to no longer be a rasha?  Two things: regret and resolve.  The first step, regret, is about the past.  It is when I recognize and feel shame about something I have done.  

The action itself cannot be erased.  The question is: what does the action mean in the story of my life?

If I do not change, I will continue on my course as the same person, as the same rasha.  My past behaviors, personality traits, and desires will continue to direct me.  It is as if I have lost my free will.  I will continue to sin, and my sins will accumulate and become harder and harder to shed.  Rav Soloveitchik describes this person “as the random example of the biological species.”  (127)

The second step in teshuvah is resolve.  Resolve is about the future.  It is “an absolute decision of the will and intellect together” to “terminate [a person’s] past identity and assume a new identity for the future.”  (112)

With resolve, something miraculous occurs.  The future changes the past.  That sin, which prompted such feelings of regret, no longer continues, through inertia, to its inevitable conclusion.  I am no longer trapped in destructive patterns of behavior.  “Such a man is no longer a prisoner of time but is his own master.”  (127)  He creates a new universe.

My regret for the sin I have committed has become the catalyst for self-transformation.  The ability to change meaning of the sin in my past through teshuvah, says Rav Soloveitchik, is the essence of human free will.

Now, when I tell my story, I look to that low point as my wake-up call to change my ways.  My sin becomes a merit.  This is what the Talmud means when it teaches: “Great is repentance, for it causes deliberate sins to be accounted to [a person] as meritorious deeds.”  (BT Yoma 86b)

Think about this from a parent’s perspective.  We have to allow our children to make mistakes.  We have to recognize their need to test limits, even if we want to throw them out the window.  It is an essential part of their development.  We even need to allow them to behave in ways that can be harmful to other people.  

We also have to make sure that our kids face the consequences of their actions.  That is the only way for them to mature into resilient human beings with a solid ethical foundation.  If we shield our children from errors, they will grow into weak adults, unable to take charge of their destiny.

It is only by making mistakes that we have the opportunity to grow.  The Talmud teaches “in the place where repentant sinners stand, the wholly righteous cannot stand.”  (BT Berakhot 34b)

The midrash (Genesis Rabbah 1:4) teaches that, even before the creation of the physical world, God created teshuvah.  It is built-in to human identity.  Rav Soloveitchik adds that teshuvah is the key to a human’s ability to create as a partner with God.

A person is creative; he was endowed with the power to create at his very inception.  When he finds himself in a situation of sin, he takes advantage of his creative capacity, returns to God, and becomes a creator and self-fashioner.  Man, through repentance, creates himself, his own “I.”  (113)

This sounds great.  But is it true?  Can we really stop the inertia of destructive behavior and transform ourselves? ?

If I look at my resolutions from previous High Holidays, can I honestly say that I have succeeded?  Am I a new person from the person I was one year ago, five years ago?  Have I created a new “I?”

Every night, the Hassidic Rebbe Levi Yitzchak of Berditchev would examine his heart.  He would review the day, considering everything he had done, every interaction, every moment.  As he was only human, he would inevitably discover a flaw of some sort.  Then he would announce out loud: “Levi Yitzchak will not do this again!”

Then he would pause and reflect: “Levi Yitzchak said exactly the same thing yesterday!”

To which he would add: “Yesterday Levi Yitzchak did not speak the truth, but he does speak the truth today.”  (Martin Buber, Tales of the Hasidim, Vol. I, p. 218)

This sounds a little more realistic.

The first instance of teshuvah in the Torah occurs between brothers.  Joseph is the Viceroy of Egypt, tasked with guiding the nation through seven years of famine.  He is in disguise when his brothers come begging for food.

To test them, Joseph accuses his brothers of being spies and throws them in jail for three days.  Then he keeps Simeon as a hostage, and sends the others back to their father in the Land of Canaan.  “Do not return,” he says, “unless you bring your youngest brother, Benjamin, with you!”

When they eventually come back for more food, Benjamin in tow, Joseph continues the test.  He plants a silver goblet in Benjamin’s sack of grain and has them arrested.  “Return to your father in peace,” he orders, “but Benjamin must remain here in Egypt as my prisoner!”

Joseph has reproduced the exact circumstances from twenty years earlier when they returned home to their father without their brother.

You will recall that it was Judah who devised the plan to sell Joseph into slavery.  Now, it is again Judah who steps forward.  “Take me as your prisoner and slave, and let Benjamin return to our father.  For I cannot bear to return to him without the boy.”

Maimonides defines teshuvah gemurah, complete repentance, in the following way:  When a person is found in the same circumstances, able to commit the same crime, and yet does not–that is complete repentance.

Judah has become a new man.  He, along with the other brothers, are not the same people that they were twenty years earlier.  Perhaps that is why Joseph, after revealing himself, says “it was not you who sent me here, but God.”  (Genesis 45:8)

Regret leads the brothers to resolve to change.  They rewrite the meaning of their earlier mistreatment of Joseph in their own narratives.  They are not the same siblings who banished their brother.  Since these are different men standing before him, Joseph cannot hold them accountable.  He forgives them. 

The Ship of Theseus paradox is not an analog for a human being.  The ship was placed in the Athenian Harbor to remind future generations of what Theseus once did.  Its meaning and memory is static.  Regardless of how much a philosopher bangs his head against the problem, those tasked with maintaining the ship do not want it to change.

We are the opposite.  Our bodies may remain basically the same from one moment to the next, but our purpose, as human beings fashioned in God’s image, is to be dynamic.

Rosh Hashanah celebrates Creation.  While most of our liturgy focuses on God’s Creation of the World, there is another aspect of Creation which is at least as important.  We often describe human beings as partners with God in Creation.

This rolls off the tongue easily, and sounds inspiring.  But what does it really mean for a human being to create—to produce something out of nothing—to change the nature of reality?

That is what teshuvah can be.  An opportunity not only to create a new “I,” but to create a new world.  That is the aspect of  being human that is God-like.  It is the possibility to create.  But to be Creators, we must look at what we have done with open eyes and brutal honesty.

I note those moments when I could have been better.

I discern the patterns of repeated mistakes.

I feel regret.

Am I prepared to change?

Can I resolve to become a new “I”?

Am I ready to create a new world?

 

 

BIBLIOGRAPHY

David P. Goldman, “The Jewish Idea of Freedom” in Ḥakirah 20, 2015 – (http://www.hakirah.org/Vol20Goldman.pdf)

Ilana Kurshan, If All the Seas Were Ink

Rabbi Jonathan Sacks, The Birth of Forgiveness (Vayigash 5775) – (http://rabbisacks.org/birth-forgiveness-vayigash-5775/#_ftnref2)

Rabbi Joseph B. Soloveitchik, Halakhic Man

Neal Stephenson, Anathem

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.

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?

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)