S.A.L.T – PARASHAT KI TEITZEI

By Rav David Silverberg

Motzaei

            Toward the beginning of Parashat Ki-Teitzei, the Torah introduces the obligation of teliya, to briefly hang the remains of an offender executed by Beit Din (“ve-talita oto al eitz” – 21:22).  The Mishna in Masekhet Sanhedrin (45b) cites two views regarding the scope of this command.  Rabbi Eliezer maintained that it applies to all niskalin – meaning, those whom the court executes through sekila (stoning).  According to the majority view, however, which is accepted as halakha, this law is restricted to those executed for the transgressions of idolatry and blasphemy, but not those who are found guilty of other offenses punishable by sekila.

            Rav Yitzchak Zev Soloveitchik, as well as later writers, raised a question concerning the relationship between sekila and teliya.  Do we view the hanging as part of the execution process, or as a separate requirement?  Meaning, does the Torah require teliya as the final stage, so-to-speak, of the sekila process, or does the execution process conclude with sekila, at which point a separate requirement of teliya takes effect?

            One ramification of this issue will arise in the case of an offender liable to sekila who is put do death by one of the other three means of court execution.  The Rambam (Hilkhot Sanhedrin 14:8) rules that if a Bet Din is practically unable to administer the warranted form of execution, they execute the offender through whichever means they can.  The question thus arises as to whether teliya is performed in the case of a person who committed idolatry or blasphemy, but had to be put to death through a means other than sekila.  If we view teliya as part of the sekila process, then, presumably, it is performed only if sekila is administered.  But if we view teliya as a separate obligation cast upon Beit Din in cases of violators convicted of idolatry or blasphemy, then it stands to reason that they would hang the offender regardless of how he was put to death.

            Another difference between these two perspectives is the punishment for witnesses who falsely testify that somebody committed idolatry or blasphemy.  As we discussed yesterday, the halakha of eidim zomemin renders false witnesses liable to the punishment that the defendant would have received had the court acted upon their false testimony.  The question thus arises, if a pair of witnesses falsely testified that a certain individual worshipped idols or blasphemed God, and they are found to be eidim zomemin and thus executed, must the court then perform teliya?  The Sifrei, here in Parashat Ki-Teitzei, infers from the Torah’s wording that the remains of the executed witnesses are not hung in such a case.  Significantly, the Sifrei arrived at this conclusion only on the basis of a textual inference; intuitively, it appears, the Sifrei would have applied the mitzva of teliya even in this case.  This passage thus likely reflects the view of teliya as part of the sekila process.  According to this view, any violator liable to sekila is also subject to teliya, which is, essentially, part of the act of sekila, and therefore had the Torah not indicated otherwise, we would have applied the teliya obligation in the case of eidim zomemin who are executed through sekila.  According to the other perspective, however, teliya is a separate obligation cast upon Beit Din in cases of a conviction for blasphemy or idolatry, in which case it is obvious that it does not apply to the case of eidim zomemin.

            In any event, the Rambam assigns two separate entries in his listing of the 613 Biblical commands for sekila and teliya, likely reflecting the view that these are two separate obligations upon the court, and not two stages of a single process of execution.

(Based on an article by Rav Mordechai Carlebach in the weekly Mi-saviv La-shulchan, issue 173)

Sunday

            We read in Parashat Ki-Teitzei the laws regarding the unfortunate case of a violator who is liable to malkot – lashes administered by the court.  The Torah issues a stern warning to the Beit Din not to exceed the prescribed number of lashes, noting that if the violator is beaten excessively, “ve-nikla achikha le-einekha” – “your brother will be denigrated in your eyes” (25:3).  Exceeding beyond the prescribed corporal punishment not only subjects the transgressor to pain that he does not deserve, but also has the more far-reaching effect of undermining his dignity and exposing him to public denigration.  It gives the impression that the violator has lost all worth and may be abused without limit, and is not an ordinary person with ordinary rights.  The Torah therefore warns Bet Din not to punish an offender any more than the prescribed amount of lashes.

            The Mishna (Makkot 3:15) infers an additional concept from this verse, noting the Torah’s use of the word “achikha” (“your brother”) in reference to the sinner.  Rabbi Chananya Ben Gamliel, as the Mishna cites, interprets this term as indicating that once punishment has been administered, the culprit once again becomes “your brother.”  Specifically, this means that even if a person committed a grave violation for which he is liable to kareit, once the court administers malkot, he is absolved of his guilt and should be viewed as “achikha” – as a member in good standing of Am Yisrael.  This halakha is codified by the Rambam in Hilkhot Sanhedrin (17:7).  (It should be noted that in prevalent editions of the Rambam’s commentary to the Mishna, it is written that Halakha does not follow this ruling of Rabbi Chananya Ben Gamliel, but in Rav Yosef Kapach’s edition of the commentary, which is based upon original manuscripts, the text reads that Halakha does follow this ruling.)

            The implications of this halakha extend beyond the narrow context of court-administered corporal punishment.  In situations where criticism, or – in the case of parenting or education – punishment, is warranted, we must exercise extreme care to avoid excessive condemnation.  Just as the court official administering malkot is instructed to limit the extent of the lashes, we, too, must be careful to set limits on criticism, even when it is necessary.  Of course, we must always ensure to criticize only when we are certain that it is warranted and will be constructive and useful – just as Batei Din go through extensive inquiry and deliberations before sentencing a violator.  But even when we conclude that criticism is in order, we must keep it brief and to the point.  There is no justification for insulting and denigrating somebody – even a child or student – over the course of criticism and punitive measures.  We, like the Beit Din, must ensure to avoid the effect of “ve-nikla achikha le-einekha,” of causing people embarrassment and emotional harm even in situations when criticism and punishment are deemed necessary.

Monday

            Among the many laws presented in Parashat Ki-Teitzei we find the command of shilu’ach ha-kein – to send away a mother bird before taking the eggs or chicks from the nest.  The Torah, uncharacteristically, specifies the reward for observance of this mitzva – longevity (“ve-ha’arakhta yamim” – 22:7).  Already the Talmud Yerushalmi (Pei’a 1:1) notes that shilu’ach ha-kein is one of only two mitzvot which offer this reward, the other being kibud av va-eim – honoring parents (Shemot 20:12, Devarim 5:16).  The Yerushalmi observes the stark contrast between these two mitzvot, as kibud av va-eim is an ongoing and often demanding responsibility and challenge, whereas shilu’ach ha-kein entails just a simple, momentary action.  The fact that these opposite kinds of mitzvot offer the same great reward of long life indicates to us the value and importance of each every mitzva, and that we must never attempt to judge the value of one against the other.

            Rav Yehuda Amital zt”l added that although these two mitzvot are indeed quite different from one another, they do bear a certain similarity.  In presenting the command of shilu’ach ha-kein, the Torah describes a situation where one encounters a bird’s nest “ba-derekh” – “along the way.”  Indeed, the Sifrei, as Rashi cites, comments that the obligation applies only if one happens to encounter a nest, and not if he planned to go takes eggs from a nest.  Rav Amital noted that in somewhat similar fashion, the obligation of kibud av va-eim quite often imposes unexpected duties upon a person.  We have no way of anticipating ahead of time what a parent might need, want or request.  This mitzva requires a person to be prepared to make a sudden change of plans to accommodate a parent’s wishes.  Most mitzvot, even among the more demanding ones, require us to plan and then execute.  And, in fact, we schedule our lives around a structured “mitzva timetable” of sorts.  But mitzvot like kibud av va-eim and shilu’ach ha-kein pose a unique challenge in that they require us to respond to abrupt, unexpected circumstances.  They force us to make immediate adjustments in our routine, to change plans for the sake of God’s command.  The “adjustment” in the case of shilu’ach ha-kein is very slight, as opposed to the more time-consuming obligations that arise toward parents, but both demonstrate the importance of being always ready and prepared for the divine will, happily welcoming unexpected opportunities to perform mitzvot, and making whatever adjustments they might require.

Tuesday

            As mentioned yesterday, the Torah in Parashat Ki-Teitzei presents the mitzva of shilu’ach ha-kein – sending away a bird before taking its eggs or chicks from its nest (22:6-7).  A number of Rishonim addressed the question of whether or not recites a berakha before performing this mitzva of sending away the mother bird.  Most mitzvot of this type, which require a specific action at a specific time or under specific circumstances, require the recitation of a berakha.  At first glance, it would seem that before performing the mitzva of shilu’ach ha-kein, too, one would be required to recite a berakha.

            Several Rishonim, however, ruled that no berakha is recited over this mitzva.  The Meiri (Megila 21) writes that no berakha is recited because shilu’ach ha-kein is not a regular, fixed obligation.  As mentioned yesterday, one is not obligated to send away the mother bird unless he encounters a nest by chance; this mitzva does not apply if one specifically goes to a nest to take eggs or chicks.  This halakha, the Meiri claims, renders shilu’ach ha-kein an irregular mitzva that does not warrant the recitation of a berakha.  Rabbenu Bechayei, in his commentary here in Parashat Ki-Teitzei, also offers this reason for not reciting a berakha over this mitzva.

            This approach might perhaps be understood more clearly if we assume that the role of the berakhot recited before performing mitzvot is to prepare oneself mentally and emotionally for the mitzva.  Reciting a berakha forces us to focus our attention on the fact that we are proceeding to perform an act commanded by our Creator, and it is perhaps for this reason that Chazal instituted the notion of birkot ha-mitzva.  The mitzva of shilu’ach ha-kein, however, perhaps differs from other mitzvot in that it specifically requires a spontaneous reaction.  As we discussed yesterday, one cannot prepare for this mitzva; it applies only when the situation happens to present itself without prior planning.  This might explain why, according to the aforementioned Rishonim, the Sages did not institute a berakha before performing this mitzva.

            The Rashba, in a famous responsum discussing why certain mitzvot require a berakha whereas others do not (siman 18), gives another reason why no berakha is recited over shilu’ach ha-kein.  Curiously, he addresses in this context specifically a situation where one first took the mother bird along with the eggs, and is then obligated to send away the bird.  The Rashba writes that in such a situation, reciting a berakha would resemble a “mitzva ha-ba’a ba-aveira” (a mitzva resulting from a sin), since one first transgressed the Torah’s command by taking the mother with the eggs.  Even though one fulfills a mitzva by then sending away the mother, it is wrong to put oneself in such a situation by first taking the mother and the eggs.  Chazal did not institute a berakha before performing a mitzva that became necessary as a result of wrongdoing, and thus one would not recite a berakha in this case.

            The implication of the Rashba’s comments seems to be that in an ordinary case, where one sends away the mother bird before taking the eggs, he would, in fact, recite a berakha.  This is indeed how the Arukh Ha-shulchan (Y.D. 292:10) understood the Rashba’s approach.  The Chid”a, however, in Birkei Yosef (Y.D. 292), writes that the Rashba would not require a berakha over shilu’ach ha-kein under any circumstances; once the berakha is not recited in some situations, the Sages did not institute a berakha in other cases, either (“lo pelug rabbanan”).

            Another rationale for not reciting a berakha over this mitzva is suggested by the Binyan Tziyon (Chadashot, siman 14).  Generally speaking, a berakha is not recited before performing a mitzva if one cannot be guaranteed of his ability to execute the mitzva immediately after the berakha.  For example, the Rashba writes that we do not recite a berakha before giving charity because the mitzva act depends upon the cooperation of the recipient, which the person performing the mitzva cannot guarantee.  Similarly, the Binyan Tziyon writes, the mother bird could fly away on its own accord at any instant, and thus one does not recite a berakha, for if the bird flies away on its own, the berakha would then have been recited in vain.

            On the other hand, several other authorities ruled that one does, in fact, recite a berakha before sending away the mother bird.  These include the Rokei’ach (366), the Ra’avad (Temim Dei’im 139), and the Arukh Ha-shulchan (ibid.).

Wednesday

            The Gemara in Masekhet Chulin (141b), amidst its discussion of the laws of shilu’ach ha-kein (sending away the mother bird before taking its eggs or chicks), raises the question of “ba-meh meshalechah,” which appears to mean, “How does one send it away?”  Two views are cited in response to this question.  Rav Huna ruled, “With its leg,” whereas Rabbi Yehuda said, “With its wing.”  The straightforward reading of this discussion, it would seem, is that the Gemara debates the question of which part of the mother bird’s body one should hold to send it away from the nest.  Indeed, the Rambam (Hilkhot Shechita 13:5) writes, “How does one send away the mother [bird]?  He takes hold of its wings and has it fly.”  Following Rabbi Yehuda’s view, the Rambam rules that one takes the bird by its wing and has it fly away.

            Rashi, however, in his commentary to the Gemara, explains differently.  He writes that the question under debate is whether the bird must fly away for the person to have fulfilled the mitzva, or if it suffices for the bird to walk away from the nest.  When Rav Huna says, “With its leg,” he means that a person may, if he wishes, clip the mother bird’s wings, fulfill the mitzva by having it walk away from the nest, and then seize the mother along with its young.  Rabbi Yehuda disagrees, claiming that the mitzva requires “the wing,” meaning, that the bird fly away from the nest, and not just walk.

            What emerges, then, is a dispute between Rashi and the Rambam as to whether one must physically take hold of the mother bird in order to fulfill the mitzva.  The Rambam explicitly requires physically taking the bird and sending it away, whereas according to Rashi’s understanding of the Gemara, no such requirement exists, and the only question was whether or not the bird must fly.  It would thus appear that according to Rashi, one could fulfill this mitzva by simply waving his hands, clapping, or throwing something to send the mother bird away.  The Rambam, by contrast, would require actually lifting the mother bird by its wing and sending it away.

            This debate might affect the question of whether or not one may fulfill this mitzva on Shabbat – an issue addressed by the Chatam Sofer in one of his responsa (O.C. 100).  The Chatam Sofer writes that according to the Rambam’s ruling, it would be forbidden to perform shilu’ach ha-kein on Shabbat, as this entails taking hold of a bird, which would violate the prohibitions of tzeida (trapping) and muktzeh.  According to Rashi, however, there seems to be no reason to forbid sending away the mother bird on Shabbat without taking hold of it.  The Chatam Sofer’s conclusion is that one should not send away the mother bird, even without grabbing it.  As it is uncertain whether Halakha follows the Rambam’s view or that of Rashi, it is preferable not to send away the bird, because according to the Rambam, shooing away the bird – which does not fulfill the mitzva – would constitute tza’ar ba’aei chayim – unnecessarily causing distress to animals.

            On the basis of the Chatam Sofer’s discussion, Rav Yosef Shalom Elyashiv ruled that anytime one fulfills the mitzva of shilu’ach ha-kein, he should take hold of the mother bird to send it away.  Since, as the Chatam Sofer ruled, we are uncertain which view among the Rishonim is the accepted ruling, one should satisfy all views by sending away the mother bird by lifting it by the wing.  Moreover, if one sends it away through other means, then according to the Rambam one transgresses the prohibition of tza’ar ba’alei chayim. 

            The Chazon Ish (Y.D. 175), however, disagreed with the Chatam Sofer, and ruled that Halakha follows Rashi’s position.  In his view, one may fulfill the mitzva by sending away the mother bird through any means, such as creating a loud noise or waving one’s hand.

Thursday

            In our last several editions of S.A.L.T., we have discussed various aspects of the mitzva of shilu’ach ha-kein, sending away a mother bird before taking its eggs or chicks (Devarim 22:6-7).  Rabbi Yehuda Ayiash (Algeria, 1688-1760), in his work Mateh Yehuda (Likutim, 292), writes that one cannot fulfill this mitzva through a shali’ach, meaning, by appointing an agent.  Many mitzvot allow for the institution of shelichut, whereby a person can assign somebody to perform the act in his stead, particularly when it comes to mitzvot that focus primarily on the result, rather than the act.  Thus, for example, one can fulfill the mitzva of lighting Chanukah candles by assigning somebody to light the candles in his home, or the mitzva of bedikat chametz by having another person search his home for chametz.  The mitzva of shlu’ach ha-kein, at first glance, would appear to fall into this category of mitzvot, where the focus is on the desired result, and not on the action.  We might, instinctively, have assumed that one who wishes to take eggs from a nest, but, for whatever reason, prefers not to send away the mother bird, may appoint somebody else to send the bird away for him.  The Mateh Yehuda, however, rules that shilu’ach ha-kein is among those mitzvot which one must perform personally, and cannot delegate to a shali’ach.

            What might be the rationale underlying this ruling?  Why does the mitzva of shilu’ach ha-kein not lend itself to the halakhic concept of shelichut?

            Rav Avraham Dov Kahana Shapiro (Lithuania, 1870-1943) discusses this ruling in his work Devar Avraham (vol. 2, 8:8), and develops a theory regarding the concept of shelichut which, as he notes, appears already in earlier works, including the Beit Ha-levi (vol. 1, siman 10).  The essential definition of shelichut is crediting one person for a result achieved by somebody else.  The precise dynamics of shelichut are the subject of much discussion, but at its core, it means ascribing the action undertaken by one individual to another.  The Devar Avraham asserts that when it comes to performing mitzvot via a shali’ach, this mechanism is effective only if the shali’ach does not bear the obligation that he is asked to fulfill on somebody else’s behalf.  If the shali’ach is included in the obligation, then his act will be credited to him, not the one who commissioned him.  He cannot be considered the extended arm of somebody else if he is included in the mitzva in question; he will, automatically, be considered as acting on his own behalf, to fulfill the mitzva.  And for this reason, perhaps, the mitzva of shilu’ach ha-kein cannot be assigned to a shali’ach according to the Mateh Moshe.  This mitzva applies to anyone who encounters the nest; there is nothing that inherently makes one person more obligated than another.  When the shali’ach approaches the nest, then, he is just as obligated in the mitzva as the person who commissioned him.  As such, if he sends away the mother bird, he has performed the mitzva himself, rather than an act credited to somebody else.

            One might, however, question the Devar Avraham’s assumption that all people who encounter the nest are equally included in the mitzva.  Many Acharonim, including the Chatam Sofer (O.C. 100) and the Chazon Ish (Y.D. 175), maintain that the obligation of shilu’ach ha-kein applies only if one wants to take the eggs or chicks from the nest.  If a person happens to encounter a nest, but has no interest in the eggs or chicks, then, according to many authorities, he is under no obligation to send away the mother bird.  (This is in contrast to the view of the Chavot Yair [67; cited in Pitchei Teshuva 292:1], who ruled that anytime one encounters a nest with eggs or chicks the mitzva of shilu’ach ha-kein applies.)  According to this view, then, if the shali’ach has no interest in the eggs, and it is only the person who commissioned him who wants the eggs, this situation should, conceivably, allow for shelichut, since only the dispatcher is obligated in the mitzva, and not his agent.

Friday

            The Torah in Parashat Ki-Teitzei (24:9) admonishes us to be mindful of the incident recorded earlier in Chumash (Bamidbar 12:1-16) where Miriam, Moshe’s sister, contracted the tzara’at skin discoloration.  The Ramban, both in his commentary to this verse and in his critique of the Rambam’s Sefer Ha-mitzvot, points to this verse as a Biblical source for the prohibition of lashon ha-ra – speaking negatively about others.  Miriam was stricken with tzara’at because of the inappropriate comments she made about her brother, Moshe, and we are instructed to internalize the eternal lesson of this incident and refrain from speaking negatively about other people.

            Why is the specific incident of Miriam chosen as the paradigm of lashon ha-ra?  What particular aspect of this episode renders it the “classic” instance of inappropriate speech about others?

            One possibility (see Rav Mordechai Willig’s “Remember Miriam” at http://torahweb.org/torah/2000/parsha/rwil_teitsei.html) relates to the content of Miriam’s lashon ha-ra.  Rashi (Bamdibar 12:1), citing Chazal, explains that Miriam spoke critically of Moshe’s decision to separate from his wife, claiming that if this drastic measure was not required of the rest of the nation – all of whom beheld a prophetic revelation at Mount Sinai – then it was not required of him, either.  She was unaware of the fact that God had actually instructed Moshe to separate from his wife, because of the unique nature of his prophecy (see Rashi to Bamidbar 12:8).  Miriam’s comments were thus borne out of a misconception, her not knowing all the facts related to the topic at hand.  As a prophetess herself, Miriam may have assumed that there was no relevant information regarding the situation of which she was unaware.  And this, perhaps, was her mistake.  Before speaking critically of another person, we must first ensure that we know all the relevant information, that there isn’t more to the situation than meets the eye.  Especially in our age of digital media, when hired and self-appointed pundits must present their readership with an immediate response to events, people are prone to reach conclusions before all relevant facts have been established.  The Anshei Kenesset Ha-gedola’s timeless exhortation, “Hevu metunim ba-din” (“Be deliberate in judgment” – Avot 1:1), though referring in its narrowest sense to courtroom judges, applies equally to all of us, each of whom is a “judge” over many different issues.  We must be patient and cautious in making judgment, and ensure we have all the facts before we criticize, condemn and censure.  If Miriam the Prophetess was unaware of relevant information about her brother, then we can rest assured that there is pertinent information about the stories we see and hear to which we are not, and may never be, privy.  A healthy dose of humility, and recognizing the limits of the information at our disposal, can go a long way toward improving the way we think and speak about other people.

             There might also be another aspect of the incident of Miriam that we should consider in the context of the prohibition of lashon ha-ra.  This episode, which is seen as the paradigm of the kind of speech we must avoid – involved lashon ha-ra spoken about an immediate family member.  We often tend to associate the sin of lashon ha-ra with unflattering remarks made about a fellow community member, a classmate, a coworker, a serviceman, and the like.  But the example of lashon ha-ra that the Torah bids us to remember involves disparaging comments made about a family member to another family member (Miriam made her comments to Aharon).  The effort to avoid lashon ha-ra must begin with those closest to us – spouses, siblings, children, parents and in-laws.  Ironically, it is specifically within the family unit that people tend to be most lax in how they speak.  This is likely due to the fact that we know the most about those closest to us, and we are thus bound to know about their flaws and mistakes.  But we must heed the Torah’s warning – “Remember what God did to Miriam” – and be aware of the gravity of lashon ha-ra spoken within the family.  This kind of lashon ha-ra is especially destructive and hurtful, and it is thus perhaps here where we must focus the bulk of our efforts to avoid the transgression of disparaging speech.