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Class Notes - Class #9

Mitzvah #30 is the first of several extended essays in Sefer haHinnuch.  It is the most confusing of those long essays, but, as we will see, if helps the author clarify for himself a task that will become central to his enterprise.  We will start with the standard four-part analysis of this mitzvah, which appears in the first four paragraphs and the last two paragraphs of the essay.  Then we will deal with the three other topics the author covers in between.

 

The beginning of the essay identifies the source verse for this mitzvah: one should “not take the name of the Lord your God in vain.”  This is understood as swearing an oath, a “shvua,” in God’s name, for no purpose. There are at least four ways to do this:

  1. To swear that something well known is not so.  This is purposeless because it is false.  Our author gives an example of swearing that something made of marble is made of gold.
  2. To swear something well known is so.  This is purposeless because it is swearing to the truth of something already established.  For example, one should not swear that a tree is a tree.
  3. To swear to violate a mitzvah one is obligated to fulfill.  This is purposeless because the speaker cannot effect whether or not the mitzvah obligates him.  Thus it is analogous to #1, swearing that something known is not so.
  4. To swear to do something people are intrinsically unable to do, such as not sleeping for three consecutive days.  This is purposeless because, whatever the speaker intends, it is obvious that the speaker will not be able to carry out the vow.

 

Distinguish this purposeless oath from an oath that is false, a “shvuas bitui.”  The false oath is prohibited, but not by this mitzvah.  (See mitzvah #227.)  This includes swearing something one knows to be false is true, and swearing to do something in the future but failing to do it.

The shoresh of this mitzvah focuses on the source verse’s prohibition on using God’s name purposelessly.  The author connects it to the theological themes we saw in many of the other mitzvot in the aseres hadibros.  If we take God with sufficient seriousness, then we will treat our mentioning God’s name with awe and reverence.  It is not clear from the author’s discussion exactly what one has to say to be “using God’s name.”  A similar shoresh applies to taking a false oath.  Just as God is eternal and reliable, so should we be. 

The dinei hamitzvah section appears in the penultimate paragraph near the end of the essay.  It focuses on two issues. 1.  In trying to figure out if someone has made a binding oath, the exact language the person uses is important.  Our author explains that one can make a shvua without using the term shvua, if one uses a synonym everyone understands to be equivalent.  The person must also intend what he says.  2.  If someone swears under duress, does that violate this mitzvah?  For example, what if someone attacked by bandits swears something to get the bandits to let him go.  Here, the author finds a way out, so that the victim can swear what he needs to and still not violate this mitzvah.  The solution is to have a mental reservation that could be true.  The example our author gives is that, if someone swears “I’ll never eat a fruit if what I said isn’t true,” he has not violated this mitzvah if the has a mental reservation that “I’ll never eat a fruit” means “I will not eat a fruit today.”  However, if the speaker has no such mental reservation, the oath is binding despite the duress under which it was made.  (Although the author’s concept is reasonably clear, I find the example amusing.  Will the thugs really be satisfied of the victim’s veracity if the victim swears off fruit?)

This mitzvah applies at all times, in every place, to men and women.  It is punishable with malkos.  That is a bit surprising, since normally no malkos are given for a violation that only involves speech but does not involve action.  This is an exception because it is so serious.  There is no korban for a violation b’shogeg.

There is much basic information missing from this description of the mitzvah.  The author does not explain exactly what one needs to say to make a binding vow, or exactly how God’s name would be mentioned, or why one would be tempted to make one of the “purposeless vows” outlined above.  Despite the length of this essay, it leaves many questions unanswered.

 

The paragraphs we just summarized contain the standard material that appears in any typical mitzvah/essay, and it is no more difficult than the mitzvot we have seen so far.  However, our author decides to extend his discussion to three related topics.  We will take them in the order in which they appear.

 

The first additional topic is to distinguish a neder from a shvua.  A neder is also a binding promise, typically a promise to give something to the Temple or to foreswear benefit from something.  These two types of binding promises are very closely related.  Both involve very close attention to exactly what the speaker said and exactly what the speaker meant.  Our author marshals cases where it matters whether the promise someone made was a neder or a shvua.  One of those differences is the crucial difference between a neder and shvua, and once we understand that crucial difference, all of the differing details follow logically.

            First the author gives us some background about nedarim.  Take a case where someone promises to donate a specific animal to the Temple.  Once that has happens, the person is forbidden to get any benefit from the animal.  When one makes a neder, it is as if the person said, “Let this object be as forbidden to me as an animal I pledged to the Temple.”  If that is the prototype, then if someone says, “May this be as forbidden to me as an animal I have promised to the Temple,” the promise is binding.  I promise to give an animal to the Temple and I, by my own power, have created a situation where I am now not allowed to have benefit from the animal.  I can then create a situation where I am not allowed to have benefit from something else by making the promise by analogy to the dedicated animal. But if the person says, “May eating this be as forbidden to me as eating pig,” the promise is not binding.  I cannot make something as forbidden to me as eating pig, because I cannot forbid things in the way that God does. 

            Let’s say I want to make a binding promise not to eat chocolate.  For that promise to be binding, I need to follow a standard formula for a binding promise.  I could say, “I am forbidden to eat chocolate.”  That puts the prohibition on me, so that promise is a shvua.  Or I could say, “Chocolate is forbidden to me.”  That puts the prohibition on the chocolate, so the promise is a neder.  The general result is the same:  I may not eat chocolate without breaking a binding promise I have made.  Only the focus is different.  If the focus is on the object, the promise is a neder.  If the focus is on the person, the promise is a shvua.

            There are differences in the details that depend on whether my promise was a neder or a shvua.  At first glance, the differences seem arbitrary.  But a closer look shows that the distinctions follow logically from that basic difference between a neder and a shvua.  Our author lists several of those distinctions.

            Distinction #1:  Let’s say that someone promises to foreswear benefit from something incorporeal such as the smell of roses. (We now know that aromas have some physical presence, but that physical presence is not obvious.)  If the promise is phrased as a neder, “The aroma of roses is forbidden to me,” the neder does not take effect.  The aroma of roses is incorporeal, so there is nothing for the neder to apply to.  But if I say, “I am forbidden to have benefit from the aroma of roses,” the shvua does take effect, since I do have the power to limit myself.

            Distinction #2:  Consider a case where someone repeats a binding promise several times.  For example, if I say, “This chocolate is forbidden to me,” I have made a neder.  If I repeat that statement three times, I have made three nedarim.  The chocolate can be forbidden to me over and over and over, just as items can be forbidden to me by several different mitzvot at the same time.  But if instead I make a shvua, “I am forbidden to eat this chocolate,” no matter how many times I repeat it, I do not add any additional obligation.  There is nothing added by my repetition because I am already obligated.  When I repeat that promise, nothing changes.  This distinction might potentially matter for the question of how many sets of malkos I get if I break my promise.

            Distinction #3:  What happens if I make a promise not to eat matzah on the first night of Passover.  We know from our prior study that I have a positive mitzvah to eat matzah on that night.  All depends on how I phrase things.  If I phrase it as a neder, “Matzah is forbidden to me on the first night of Passover,” I have made a binding promise.  The focus is on matzah.  I still have a mitzvah to eat matzah on that night, but I cannot fulfill that mitzvah because every piece of matzah I pick up is forbidden to me because of my neder.  However, if I make my promise in the form of a shvua, “I am forbidden to eat matzah on the first night of Passover,” I have not made a binding promise.  The focus here is on me.  God has already obligated me to eat matzah and nothing I say can change that. 

            This is a little puzzling, as it would seem that my promise should not outweigh my positive mitzvah to eat the matzah.  After all, it seems that we have a conflict between the negative mitzvah “not to break my promise” and a positive mitzvah to eat matzah on the first night of Passover.  Normally, our author tells us, a positive mitzvah takes precedence over a negative mitzvah.  (Our author is introducing another of those general principles he likes to insert.)  But this analysis is misleading.  We are not counting the mitzvot correctly because a neder involves a negative mitzvah not to break one’s word (mitzvah # 407) and a positive mitzvah to do what we say we are going to do (mitzvah #575.)  When balancing one positive mitzvah against a combination of a positive and negative mitzvah, the combination takes precedence.

            Distinction #4:  Let’s say I am listening to someone else making a promise and I decide to say “Me too.”  If the other person was making a neder, the focus of the statement is on the object.  I succeed in making a parallel neder when I say, “Me too,” because just as the other person can make the stuff forbidden to him, I can make the stuff forbidden to me.  However, if the person is making a shvua, I cannot make a parallel promise by saying, “Me too.”  The focus of the statement is on the person, in this case the person who is making the initial promise.  When I say “Me too,” I am agreeing to a statement about that other person, so I have not done anything to obligate me.  But that result could be different depending on the exact language I use.  If instead of saying “Me too,” I say “I say the same thing about me as you say about you,” or some other language that conveys that same message, the promise is binding. 

           

That is the last of the detailed distinctions the author makes between a neder and a shvua.  You may not remember all the details involved here, but there is an overall message:  Be careful about what you promise, and, if you make a promise, keep it.

            The process our author uses here, however difficult it is to follow his argument, is an important one.  We start with a conceptual distinction, and discover that large groups of disparate details all fall into place if you follow the concepts to their logical conclusions.  This type of analysis of halachic sources is now called “Brisker derech,” after R. Chaim Brisker who re-publicized this analytical approach in the late 1800s.  R. Chaim tried to apply this type of analysis to as many halachic disputes as possible, and he developed new terminology to facilitate applying this method to many different types of disputes.  But the overall approach was nothing new, as is clearly evident in this essay. 

 

The next topic our author deals with is the question of whether it is possible to get out of a neder or shvua one has made.  Given what our author said about the shoresh hamitzvah, it seems odd that this should be possible.  But, the author says, the possibility of getting out of a binding promise is a hesed, a kindness, from God to us.  God knows that we are frail and that we are not entirely reliable, so God has left us a way out.  But that option is not automatic and not easy.

            Two conditions are required.  First, the obligated person must consult with an “ish hacham u’navon b’darchei hatorah,” a man wise and understanding in the ways of the Torah.  (The author here is quoting the Talmud’s language.  I do not know if this is davka ish, or lav davka ish.  That is to say, I do not know whether a woman who is wise and understanding in the ways of the Torah could do the job.)  The person who made the binding promise cannot just let him or herself off the hook.  The need to consult with a respected, expert person might help encourage the person who made the promise keep the promise rather than trying to get out of it.  This mechanism adds some discomfort and awkwardness to the process of being released from a binding promise.

            Second, one can only be released from a binding promise if some new circumstance arose such that, had the promiser known about the new circumstances at the time of the promise, he or she would not have made the promise at all.  Something new has to have entered the situation that makes the person who made the promise regret ever having made the promise.  If the person who made the promise can convince the wise authority that such a circumstance exists, the authority may exercise his (or her?) discretion to release the person from the binding promise.  Our author gives an example.  I dislike someone in town, and make a binding promise to have no benefit from that person.  Then the local scribe leaves town, and the person I do not like becomes the town scribe.  Now I have a problem.  If I want a letter written, or I need a new mezuzah, I am stuck.  I have foresworn benefit from the new scribe.  So I would like to get out of my promise.  I identify and go consult a qualified wise authority.  If the argument I make is “I still don’t like him and I wish he had never become the town scribe,” the wise authority will not absolve the promise.  But if the argument is “If I had know when I made the promise that he would become the town scribe later, I never would have made the vow,” then the authority may absolve the promise.

            The situation is more difficult when the promise depends on the will of others.  That is, the person making the promise conditions release of that promise on the consent of others.  Then the wise authority cannot, by himself, absolve the promise.  There is an exception for a situation where the promise prevents the person from doing a mitzvah.  In that case, we can assume that the person on whose will the promise depends would be willing to allow the person who made the promise to do the mitzvah.

 

Last, our author considers questions related to Biblical passages in which God makes an oath.  God is presumably reliable, with or without an oath.  And God does not have human frailties, so when God makes an oath God should presumably keep His promise.  It seems odd to think of God as changing His mind.  It also seems odd to suggest that there could be some new circumstance such that, had God known earlier about that circumstance, God would have acted differently.  We assume God knows what will happen, and we assume that God does not act rashly.

            This is our author’s first attempt to deal with the problem of Biblical anthropomorphism.  We know that our author, following Rambam, insists that God is incorporeal.  God cannot have any physical form because God is perfect and all physical beings have imperfections.  As we have seen, that makes it very difficult for us to talk about God, as we can only understand things based in the physical world.  The Torah has no better solution to that problem than we do.  If the Torah is to teach us about God, it has to speak in a way we can understand.  Thus, the Torah uses language about God that is not, strictly speaking, accurate because it uses language that analogizes things God does to what we do.  But the Torah does that very carefully, and, when the Torah does that, we must read it very carefully.

            When the Torah refers to God as swearing, it uses language like “bi nishbati,” “by Myself I have sworn.”  Our author understands this to be describing what God does by analogy to what we do.  Just as the most reliable statement a person makes is to swear, when God wants to make a statement and emphasize the statement’s reliability, the Torah uses the language to God swearing.  This terminology means to convey that this statement is “as sure as sure can be.”

            Typically the Torah uses language of God swearing when the Torah is discussing God rewarding people for good behavior or punishing people for bad behavior.  When God evaluates someone’s behavior and finds it so clearly good that it deserves reward, if the Torah uses language of God swearing, the idea is that for absolute sure this person will be rewarded. 

But things are more complex when it comes to people who deserve punishment.  Sometimes God evaluates people’s behavior and finds it so clearly bad that it deserves punishment.  Then, sometimes, the Torah uses language about God swearing to punish, as if to say this behavior is so bad that, for absolute sure, the person will be punished.  But the possibility of God forgiving persists, and these are the cases where the Torah seems to say that God swears and then changes His mind.  God’s generosity requires the possibility that, no matter how bad someone’s behavior, God may choose not to punish that person.  Then we have the Torah describing God swearing, as it were, and then going back on that promise, as it were. 

Our author alludes to the example of God’s reaction to the Jews making the golden calf.  God tells Mosheh He plans to destroy the people and build the Jewish nation from Mosheh himself.  Mosheh succeeds in talking God out of that plan, asking God to remember the Patriarchs and to consider what God’s reputation with the Egyptians will be if God eliminates the people He just freed.  There is no explicit language of God “swearing” in this passage.  But the language of God “swearing” just emphasizes the real problem: God says He will do one thing, and then does something else.  Here, it is Mosheh’s plea for leniency that “releases God from His oath.”

Late in this discussion, our author reflects for a bit on what he has written in this essay.  He says, “Therefore I have been lengthy about this, to show you the way in many [similar] cases.”  The author is probably referring to his discussion of anthropomorphism, and he will return to this topic several times.  He does suggest here that he anticipates he and his son or other students will indeed continue with the task of studying each of the mitzvot.  This is certainly a word of encouragement.  I wonder whether the author is also reflecting on his attempt at a conceptual approach to understanding halachah earlier in the essay.  He will return to that project as well.

 

 

Now let us pause to consider our author’s enterprise of articulating shorshei hamitzvah for each mitzvah.  As far as I know, his is the only attempt in the Middle Ages to articulate a shoresh for each mitzvah.  It was a controversial enterprise.

            First, I cannot define precisely what a “shoresh” of a mitzvah is.  The word shoresh means “root.”  More recently, this enterprise is called “ta’amei hamitzvot,” “the flavor of the mitzvot.”  Both formulations seem to be consciously avoiding saying these insights are reasons for the mitzvot, but that does seem closely related to what is being done.  Calling these insights “reasons” creates its own ambiguity: is this the reason we should comply, or the reason God wants us to behave this way.

            The motive to avoid searching for “reasons” for mitzvot is that a mitzvah is a commandment to us from God.  The reason for us to comply is that God requires us to comply.  The reason God wants us to behave in this particular way is unfathomable; we cannot understand God and His ways.

            But there is a problem with not trying to understand messages from the mitzvot God commands us.  Without some sort of reason-type insight, our compliance is just a set of mechanical acts.  I do what God tells me to do.  That’s good – I recognize myself as commanded, and I comply.  But that’s all there is to it.  It has no greater meaning to me than that.  It carries no greater message.  It is just a set of arbitrary rules.  Maybe God had reasons for commanding me to do these things, but I have no way to think about what those are.  They really do not matter to me.  That leaves my experience of complying rather cold.

            One attempt at a solution comes from the mystical tradition.  God has reasons for commanding what He does.  Those reasons are among the secrets of God’s universe, but our compliance contributes to the secret ways God wants the world run.  We should not expect to understand much.  What we understand will be difficult and esoteric.  We enter areas of study related to emanations, heavenly beings, various names of God, sefirot, etc.  It takes great insight and study to even get a glimmer of understanding of any of this, and many of us will not even achieve that glimmer.  But we can be assured we are contributing.

            Our author takes a rationalist approach.  God’s plan, as indicated in the mitzvot, has aspects that are accessible to us.  They may even be common sense type things.  If we cannot understand them fully, we can get the main ideas. 

            This has a major advantage.  We can search for moral insights into the mitzvot.  The mitzvot become more than just mechanical actions.  They become actions with moral messages.  By doing the mitzvot, I reinforce the moral messages God wanted us to learn by giving us the mitzvot.  Even the mitzvot I cannot actually do, because, for example, they no longer apply or do not apply to me, might help me understand the kind of person God wants me to be if I study the roots of those mitzvot.  The mitzvot create a system of behavior that makes me the kind of person God wants me to be.  That feels like an inspiring enterprise, and something most of us can understand, at least at some level.

            There are, however, two significant dangers.  First, it is not always clear what moral message we should be taking from any given mitzvah.  For example, consider the mitzvah of annihilating Amalek, the tribe that were the prototypic enemies of the Jewish people.  The Torah requires that, if we have the opportunity, we kill every man, woman and child descended from Amalek.  For some, this mitzvah is horrific. How can it be moral to kill children just because of the group they were born into?  Shouldn’t we be punishing guilty people, and sparing people who are innocent of everything except involuntary association?  This is not a prototype of how we should behave; it is a unique exception, and we comply only because God, whose creatures these people are, commands us to.  For others, though, this is a perfectly rational model for how we should deal with implacable enemies. We should not be misled by starry-eyed liberals concerned with each individual when we are faced with an enemy determined to destroy us.  We do not have the luxury to pick and choose.  We should destroy every one we can.  This illustrates one problem with trying to articulate moral lessons from mitzvot: who decides what the appropriate moral lesson is?

            Once we have articulated a shoresh, we face a second problem.  To any given individual, the shoresh we identify may seem attractive, so that it contributes to that individual wanting to fulfill the mitzvah.  To another individual, though, the shoresh we identify may be unattractive.  Our having stated a shoresh makes it less likely that this person will want to fulfill the mitzvah.  The person may even avoid doing the mitzvah out of rejection of the shoresh. 

            Thus, our author’s attempt to formulate shorshei hamitzvah is not as simple as it seems.  We will have a little more to say about this next week, when we try to put our author’s work in the context of the Maimonidean Controversy.

           

           

 

           

           

           

 

 

 

 

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