Class Notes - Class #28

Mitzvot #544 and 545 deal with someone who wants to take eggs from a bird’s nest.  Mitzvah #544 prohibits taking the mother and the eggs or fledglings at once, and also prohibits taking the eggs or fledglings while the mother bird is sitting on the nest.  Mitzvah #545 is a positive mitzvah that requires chasing away the mother bird.  Some of the information in my discussion comes from Rabbi Nathan Slifkin’s excellent article Shiluach haKein: The Transformation of a Mitzvah, which can be found on his website

            The author provides practical information about these mitzvot at the end of mitzvah/essay #545.  These mitzvot do not apply to birds that live in one’s house, but they do apply to birds nesting in the public domain or birds that fly free even if they nest in a dovecote.  The mother need not be chased away unless the mother is actually touching the nest.  The person taking the eggs must chase the mother away again and again if the mother bird returns to the nest.  These mitzvot do not apply if the eggs in the nest are not fertile or have rotted. 

            Normally someone who violates a negative mitzvah, assuming the violator has been warned and the violation has been witnessed, is punishable with malkot.  We have seen several exceptions, including an exception when the perpetrator fulfills a related positive mitzvah.  Here our author explains that rule more clearly.  Sometimes a negative mitzvah has a closely related positive mitzvah that requires certain behavior from someone who has violated the negative mitzvah.  For example, there is a negative mitzvah that prohibits leaving the meat of the Passover sacrifice until the following morning, and there is a related positive mitzvah that requires anyone who has leftover sacrificial meat to burn it.  That positive mitzvah is understood to be an alternative to the expected punishment, so that someone who has leftover meat from the Passover sacrifice and burns that meat is not punishable for leaving the meat over in the first place.  As long as the option of fulfilling the positive mitzvah is available the violator is not subject to malkot.  But if the person does not mitigate the violation and it becomes impossible for the person to fulfill the related positive mitzvah, the person is subject to punishment by malkot.

Our author plays out that principle as it applies to these mitzvot.  Mitzvah #544 is a negative mitzvah prohibiting taking the eggs while the mother bird is on the nest.  We would expect someone who takes the eggs while the mother bird is on the nest to be punishable.  But here there is a related positive mitzvah to chase away the mother bird.  Someone who takes eggs out from under a mother bird sitting on a nest can still fulfill the positive mitzvah of chasing off the mother bird, so the person is not punishable.  But if it becomes impossible to chase the mother bird, for example if the mother bird died after the person took the eggs, or if someone else chased away the mother bird and she flew away, the person taking the eggs can no longer rectify the violation and is therefore potentially punishable.  It does not matter whether it became impossible to fulfill the positive mitzvah because of something the violator did, or whether it became impossible to fulfill the positive mitzvah through no fault of the violator, for example if someone else killed the mother bird.  Either way the violator is punishable if it becomes impossible for the violator to fulfill the mitigating positive mitzvah. 

            Our author focuses most of his discussion of these mitzvot on the shoresh.  One of the unique aspects of Sefer haHinnuch is the author’s attempt to articulate a shoresh for every single mitzvah, and this mitzvah/essay gives the author a chance to reflect on that enterprise in more detail.  Before we look at what our author’s discussion, let’s put it in some context.

Very early in our study we discussed the problems with trying to articulate a shoresh, trying to define why a good and generous God would want people to behave in specific ways.  We mentioned that different people might discern very different messages from a given mitzvah.  We also considered the danger that someone who finds the shoresh of a mitzvah unattractive might also avoid doing that mitzvah.  Thus the shoresh might be more of a distraction than a help, might even be misleading.  And we considered the arrogance of trying to discern what God “had in mind.”  But if we do not try to discern what benefit might come to people from keeping mitzvot, our enterprise of keeping those mitzvot may become dry and mechanical, lacking in meaning or inspiration.

            It is challenging to try to articulate a shoresh for the mitzvot about taking eggs, fledglings and mother birds.  The mitzvot seem to be related to compassion for the mother bird, sparing her from seeing someone take her offspring.  In that context, these mitzvot seem similar to mitzvah #294, which prohibits slaughtering a parent animal on the same day as its offspring.  The suggestion that this mitzvah is related to compassion for the mother bird assumes that the person is taking the eggs because the person needs the eggs.  It is hardly possible to say that chasing away the mother bird is related to compassion if someone is taking the eggs for no useful purpose. 

But the relation between these mitzvot and compassion for the mother bird is strained.  Will the mother bird be just as pained if she watches her eggs begin taken although she was not actually sitting on the nest?  Why only some birds and not others?  Why birds and not other creatures? 

            Based on what our author has said about other mitzvot, we would expect him to see these mitzvot as an example of compassion for all of God’s creatures, even lowly birds.  These mitzvot help inculcate the trait of compassion in the people who observe these mitzvot.  If we are compassionate, we will be more worthy of God’s blessing.  If God behaves toward us the way we behave, then if we are compassionate to God’s creatures God is more likely to be compassionate to us.           

            In order for us to understand what our author says in this essay we need to be familiar with a crucial Talmudic passage he refers to.   The Talmud, B’rachot 33b, considers a case where the hazan leading prayers includes various phrases.  (Recall that in earlier times the hazan did not have the fixed text we have now.  The hazan would improvise independently on the themes of the prayer service.)  The Mishnah says that if the hazan says, “God has mercy even on a bird’s nest,” he should be stopped.  The Gemara asks why.  One opinion is that the hazan’s statement might create jealousy:  God seems to be paying more attention to the feelings of mother birds than to the feelings of other animals.  The other opinion is that “these [presumably mitzvot] are only attributes of God; not mercy, only binding decrees.” 

A straightforward reading of that passage suggests two clear, simple opinions.  One says there are reasons for mitzvot, and that the reason for the mitzvot we are considering here is mercy but that there is some extraneous reason that prevents the hazan from saying that in the prayer service. The other opinion is that mitzvot are God’s decrees and, at least as far as people are concerned, we ought not to search for meanings.  We should just consider the mitzvot decrees we are obligated to obey.

But this discussion may be more complicated than it first appears.  It is not clear whether the problem with the hazan’s statement is that its content is difficult or only that the hazan ought not mention it in the prayer service.  The first opinion seems concerned with the jealous feeling of other creatures, imagining, for example, that lions might be listening and be unhappy.   The point might be that the mitzvot regarding birds’ nests reflect God’s mercy, but God’s mercy is not distributed evenly among God’s creatures and that seems unfair.  So we can try to give reasons for mitzvot, but the reasons will not be entirely satisfying.  The second opinion seems to take the position that as far as people are concerned we do mitzvot because God told us to and that we should not look for reasons or benefits.  But some mitzvot have obvious benefits for people, for example the prohibitions on murder or theft.  Rashi understands the second opinion to be referring to mitzvot that have no obvious benefits.  That leaves open the possibility that we can discern benefits God intended us to get from observing some mitzvot, but not all the mitzvot.  And it leaves us with the job of trying to tell which mitzvot are which.

            With that extensive introduction, let’s examine our author’s discussion of the shoresh for these mitzvot.  That discussion has four sections: An explanation of the opinion that mitzvot should be seen only as decrees; a quote from Rambam’s discussion of these mitzvot in his Guide for the Perplexed; a quote from Ramban’s comments on the passage from Rambam; and finally the author’s reflection on his own enterprise of articulating a shoresh for each mitzvah.  We will start with the passage from Rambam and Ramban’s commentary on that passage.   

            Rambam, as quoted by Ramban and in turn quoted by our author, says that mother birds have the same protective instincts toward their eggs and fledglings as people have toward their children.  He puts that notion in the context of the Talmudic passage we saw earlier and says flatly that he agrees with the second opinion, that there is a reason, a “ta’am,” “taste,” for each and every mitzvah.  In addition to what appears in our author’s discussion, Rambam also says, “…every one of the six hundred and thirteen precepts serves to inculcate some truth, to remove some erroneous opinion, to establish proper relations in society, to diminish evil, to train in good manners or to warn against bad habits.” Guide for the Perplexed 3:31.   As to these particular mitzvot, since that which would be taken in most instances is not fit to be eaten, there will be reason to leave everything, eggs and mother bird alike, and leaving the next alone is a desirable outcome. Guide for the Perplexed III:48.  Rambam’s opinion might be read to mean the ta’am of these mitzvot is to benefit mother birds, or Rambam’s opinion might be that primarily these mitzvot teach a moral lesson to the person taking the birds. 

            Our author quotes Ramban’s comments on Rambam’s opinion, and for a change Ramban seems to be agreeing with and defending Rambam’s opinion.  Our author says both Ramban and Rambam are right on the money when they say that there is a benefit to people observing each mitzvah aside from earning merit by obeying God.  In particular, Ramban and our author understand Rambam to see the focus of these mitzvot on teaching compassion to the people who try to do what these mitzvot instruct.

Ramban defends Rambam from the challenge articulated in midrash, that it doesn’t matter to God if an animal is slaughtered by slitting its throat in the designated place or some other way.  Rather, says the midrash, mitzvot were given only to refine people, giving people a way of doing what God instructs them to do. That would seem to fit better with the Talmudic opinion that mitzvot are simply requirements rather than the opinion that there is a ta’am for each mitzvah.

 Ramban explains how mitzvot “refine” people and his explanation is consistent with what we saw of Rambam’s opinion.  Someone refines silver burns off the undesirable matter to leave purified silver.  Similarly, people refine themselves by doing mitzvot because mitzvot help keep people away from harm, help people avoid reprehensible character traits, and help people remember what God does for them and for the world.  Mitzvot benefit the people who keep those mitzvot.  Thus, Ramban understands this midrash, which seems to refute Rambam’s opinion, as a support for Rambam’s opinion.

 Ramban goes on to explain that each mitzvah has some benefit for the people who observe it but that God did not always reveal those benefits and we cannot always figure out what they are.  Even Solomon, the wisest of all people, could not find a benefit from what may be the most obscure of mitzvot, the mitzvot about the red heifer.  God had explained the reason to Moses but told Moses he would be the only one to know it.  God leaves certain mitzvot obscure.  It is our job to figure them out.  Our intellect is sufficient for us to figure them out, but even so we do not always succeed.  What we cannot discern in this world may become clear to us in the world to come.         

            But Ramban warns us off a mistaken approach.  Emphatically, God does not require that people do things because God needs those things. Our author has explained this notion earlier in his work. God does not need the light from the menorah, the aroma of the incense, etc.  God does not need us to praise him for the miracles He does, for rescuing Jews from slavery in Egypt.  God does not need signs and symbols of our relationship with God reflected in mitzvot, for example, to put on t’fillin, to take a lulav on Succot.  Rather, people benefit by refining their character, by reminding themselves of what God does for them, so that people become “pure of spirit, wise, understanding the truth.”

            And, since God’s watchful care is over species of animals rather than over individuals, the mitzvot we are focused on here are not for the benefit of an individual mother bird.  Rather, they are to teach us the quality of mercy.  Of course in order to teach us mercy we need to be required to do something merciful, so this ends up benefiting the mother bird after all.  In any event, the mercy we are taught to show toward animals is limited because we are permitted to harm animals for our own benefit, for example we are permitted to kill and eat animals.  Butchers, who kill animals often, sometimes do develop cruel personalities.  The balance is more complex than one might think.

            One linguistic note:  Our author has consistently written about the “shoresh,” “root,” of a mitzvah.  Ramban’s discussion uses the term “ta’am,” “taste,” in referring to the purposes for mitzvot.  In this passage the quote from Rambam is from the Guide, which was originally written in Arabic, so the comparable term was translated from Arabic to Hebrew.  It is hard to know why our author chose a different term.  Perhaps our author is reflecting how seriously he has taken the job of articulating each shoresh; perhaps a “root” is more serious than a “taste.”

            After the long quote from Ramban, commenting on Rambam’s opinion, our author finally speaks for himself.  The author’s pride in his enterprise of articulating a shoresh for each mitzvah shines through.  He is proud to expand on the tradition of two such respected scholars who he sees as role models and exemplars of Torah learning.  The author talks about how hard he had to work to come up with a shoresh for each mitzvah and admits he has not always succeeded.  But he is enormously proud of his accomplishment and wants us to know that God gives people mitzvot to refine the characters of the people who keep those mitzvot.  

            Our author starts the shoresh with a discussion of his understanding of the opinion in the Talmud that considers mitzvot only binding decrees.  Our author starts off with a notion we have seen before, that God pays attention to each person individually.  But God’s attention to animals is different, focused on preventing extinction of species but not focused on individual animals.  The author does not give a source for this notion or explain why he thinks it’s true.  But that notion fits well with the prohibition on taking the mother bird and her eggs or fledglings, an act which would seem to wipe out the entire bird family.

            The author takes this notion in a different direction.  These mitzvot focus our attention on the idea that species of animals survive because God wants them to survive.  When we think about that, we are inspired to understand that God cares about each individual person.  If God cares about me, I am motivated to do what God wants me to do, and then I will be deserving of the blessing God wants me to be worthy of.  If I show kindness to God’s creatures, measure for measure God is likely to show kindness toward me.  If I help facilitate preserving species of animals, God may reward me with descendants. 

We may be led into error when we associate these mitzvot with mercy, because when we describe God as merciful we mean something very different from what we mean when we try to behave mercifully.  Because God is intrinsically good, mercy is inherent in God’s very being.  But for people mercy is optional.  People can choose to be merciful or choose to be cruel.  People’s choice to be merciful is fundamentally different from God’s intrinsic mercy.  Although God is intrinsically merciful, God does not require us to be consistently merciful.  That’s why, for example, we are permitted to kill animals for food, although we are required to kill those animals in a specific way.  But ultimately the mitzvot are God’s decrees.  Had God wanted to, He could have given a different set of mitzvot.

It is not clear why our author explains the opinion that we should think of mitzvot primarily as God’s decrees, since he makes it clear he does not agree with that opinion.  It is not clear whether our author’s discussion here is limited to mitzvot with no obvious benefits or whether he has all the mitzvot in mind.  But even under this approach our author leaves us the job of being thoughtful about mitzvot rather than thoughtlessly following a set of rules.  He asks us to contemplate God’s watchful care of animal species and individual people.  He maintains that God will treat us the way we treat others.  Even under this approach, our morality is the key to our relationship to mitzvot, and mitzvot are the key to our relationship with God.

Our author has often mentioned that God’s watchful care is over each individual person.  He explores that notion in more detail in the next two mitzvot.

Mitzvot #546 and 547 are a positive/negative pair.  It was common for people to build their houses with flat roofs and then use the roof as living space.  Think of this as an ancient version of a deck. The source verse for these mitzvot, Deut. 22:8, instructs that someone who builds a house should put a fence around the roof.  Mitzvah #546 requires someone whose house has a flat roof to build a fence around the edge of the roof, and generally to remove dangerous conditions from our property.  Mitzvah #547 prohibits leaving dangerous conditions on our property lest people hurt themselves. 

The author explains these mitzvot require someone to build or repair a wall or fence if that might prevent accidents.  The source verse mentions roofs because roofs are a common example.  Fences are required around roofs, but also around pits and ditches people might fall into.  Overall these mitzvot require us to establish safe conditions on our property.  Unsurprisingly, the mitzvot were extended d’rabanan to prohibit any other dangerous activities.  We are instructed not to drink from an open tap lest we ingest a leech.  We are instructed not to drink from a cup that has been left open overnight lest a snake or scorpion deposit poison in the cup without our knowing.  Beyond doubt, our author would tell us not to text while driving. 

The shoresh for these mitzvot raises a crucial question.  Our author has repeatedly said that God extends watchful care to each individual person.  Here the author gives a source for that position.  He quotes the Talmud, Hullin 7b, which says that if a person suffers even the smallest injury, nicks his or her finger, that is because God decided that is what ought to happen to that person.  Everything that happens to each person is specifically ordained by God.  Presumably, whatever happens to an individual person is exactly what that person deserves.

If so, why do we need to put fences around roofs, and why do we need to eliminate dangerous conditions?  If someone deserves to be hurt, God will arrange for that person to be hurt.  If someone does not deserve to be hurt, God will keep that person safe.  We do not know exactly how God will accomplish that. 

Nevertheless, these mitzvot require that people be careful to protect themselves and other people from danger.  God created the world with basic natural processes, what we would think of as the laws of physics, chemistry, etc.  Those natural processes assure that someone standing under a falling boulder will be crushed, someone who encounters fire will be burned.  Therefore, people need to be careful to keep themselves safe from the natural processes that might harm them, for example by building fences around roofs so people don’t fall off.  God gave people the intelligence to avoid many dangerous situations, and people should use their good sense to try and stay safe.

According to our author, people are subject to the forces of nature and need to be cautious.  God created the forces of nature and in general those forces run their course.    It is not impossible for God to overrule those forces of nature, but God only does so rarely, and only for people whose behavior makes them exceptionally deserving.  God does not subvert natural forces for ordinary, sinful people.  Ordinary people are subject to natural processes and need to behave cautiously.  Ordinary people who rely on miracles will not have those miracles wrought for them.  Ordinary people need to behave with ordinary care.

It would seem our author leaves us with a paradox.  Everything that happens to each person is determined by God, but if someone does dangerous things that person will suffer the consequences.