2021/5781
It is interesting to find that as we near the completion of the Chamishah Chumshei Torah, that we the readers are presented with a rather large sum of Mitzvot and Halachot. However, despite the enormity and significance of there being 74 of the 613 Mitzvot grounded in the text here, one should be reminded that it is the individual commandments themselves which are of enormity and significance, particularly as this week’s Sidrah presents a sample of the Mitzvot most critical to an authentic Torah lifestyle. Through analysis and association of the Pesukim and their individual commands, we may come to recognize not simply a set of shifts in semantics concerning the Pesukim, but an entirely novel class of pragmatic truths. These truths underlie the ultimate experience of Torah, an experience that has not been wholly sustained since the eras of the academies belonging to Hillel and Shamai. [1] The resultant product stands to demonstrate that not only does Judaism’s strength lie in its past, but its future rests upon it as well. This concept, though alien, paradoxical, and perhaps even deleterious to the world of “progress at all costs,” is indeed not only compatible directly with such a world but exactly what Judaism uses as its guiding light when navigating through space and time to the brighter future that mankind has enjoined itself to follow since birth. And so, in a true “Torahdikke” fashion, we begin this journey of survey and examination with perhaps the strangest, oft-misunderstood commandments found in Tanach: Shiluach HaKan, sending away the mother bird.
“Ki Yikarei Kan Tzipor Lifanecha BaDerech BiChol Eitz O’ Al Ha’Aretz Efrochim O’ Beitzim ViHa’Eim Robetzet Al HaEfrochim O’ Al HaBeitzim Lo Tikach Ha’Eim Al HaBanim,” “If, along the road, you chance upon a bird’s nest, in any tree or on the ground, with fledglings or eggs and the mother sitting over the fledglings or on the eggs, do not take the mother together with her young” (Devarim 22:6). What is the moral reasoning behind the prohibition and Mitzvah derived from Shiluach HaKan? What purpose is served by banishing the mother bird from having to witness the taking of her babies at the hand of a creature looking for a meal? It is indeed a difficult question to answer from the Halachic perspective, seeing as there is, quite strangely, a major Machloket between Talmudic decisis and the later codified expositions of Maimonides and Sefer HaChinuch. The Gemaras in Kiddushin (34a) and Makkot (17a) purportedly suggest that Shiluach HaKan is among several Mitzvot which are actually positive commandments (albeit not time-bound). Likewise, the Sefer HaChinuch (544:1-2) indicates similarly. Yet per Maimonides’ Code [2] (Hilchot Mitzvot Lo Ta’aseh 306; see also Sefer HaMitzvot, Mitzvot Lo Ta’aseh 306), the Mitzvah is, in fact, a Lo Ta’aseh and constitutes not a command, but a prohibition simply based on the Pasuk’s own command of “Lo Tikach Ha’Eim Al HaBanim,” “do not take the mother together with her young” (Devarim 22:6). In retrospect, this major contradiction between the Halachic bodies - despite Rambam having no authority when weighed against the Tannaim and Amoraim of the Talmud - is indeed nill and does not reflect a contradiction in laws undermined by one exegetical and one eisegetical approach to the Mitzvah.
The former approaches of the Talmud and Sefer HaChinuch approach Shiluach HaKan from the perspective of resounding compassion. Conversely, the negative commandment approach of Rambam addresses the Mitzvah from the perspective of coarse warning and resulting judgment. What fundamentally differentiates these two approaches is that from the former’s approach, we witness the Mitzvah to send off the mother in the compassionate light, one that reflects the fact that despite the human tendency toward the faculty of anthropocentrism, Shiluach HaKan is a reminder of Hashem’s love and compassion for all life forms, despite His acquiescence and accommodation to the human condition when necessary. However, such compassion for all of His creatures must still be recognized, and indeed the Mitzvah of Shiluach HaKan accomplishes this by reminding the one performing it of the most basic maternal and parental instincts endowed to the vast classes of the animal kingdom. By sending the mother off, we are reminded to demonstrate compassion and reflect our cognizance of a mother’s instinct to protect her babies and spare them and herself from suffering. Thus, the former perspective is a recognition of compassion for the mother by sparing her the sight of losing her children. However, we may further cognize that Rambam is not satisfied with this “primitive” form of endowed and forced compassion. Hence Maimonides treats Shiluach HaKan, despite the earlier perspectivist approach of ultimate compassion through the action of sending the mother away, as revolving wholly around the last five words of the Pasuk alone. By shifting the burden of the Mitzvah to these five words, Maimonides in effect begs the individual to not simply cognize the Mitzvah as being an exercise in basic compassion for the mother but treating it so harshly as to charge one with having violated a negative commandment by failing to do so. It may have been sufficient for the layman to just have followed the letter of the law laid down in the Parashah as a means of actualizing the commandment, but for the educated and enlightened mind, this is not enough. Thus, the individual, in Maimonides view, is charged with exercising not simply physical caution on the part of the Pasuk’s warning, but cognitive-emotional caution as well in order to exercise greater compassion toward the mother while preventing the individual from losing sight of the behavior accorded to other members of the animal kingdom at certain points in time. Indeed, this may even be backed by the fact that the next Pasuk commands “Shalei’ach Tishalach Et HaEim ViEt HaBanim Tikach Lach,” “Let the mother go, and take only the young” (Devarim 22:7), which would indicate that the epitome of the compassionate act is, again, sparing the mother the anguish of watching her children taken from her. And so, we find that in light of the complex nature of the Mitzvah of Shiluach HaKan, that there is indeed profound compassion embedded within it; one that only serves as the primer of the succeeding Mitzvot we read of.
Following this commandment, we are presented with the charge of securing one’s rooftop. “Ki Tivneh Bayit Chadash ViAsita Ma’akeh LeGagecha VeLo Tasim Damim BiBeitech Ki Yipol HaNofel Mimino,” “When you build a new house, you shall make a parapet for your roof, so that you do not bring bloodguilt on your house if anyone should fall from it” (ibid. 22:8). This Pasuk begs the obvious question to the modern individual: what purpose does the fence serve in preventing someone’s death if it is likely the case that the burden of culpability lies upon the victim themself? Indeed, Rashi (ibid., s.v. Ki Yipol HaNofel) makes clear this very point by highlighting that “Ki Yipol HaNofel” should be taken to mean “if he that is to fall (HaNofel) falls from it.” Hence the victim, while their death is nothing if not tragic, is potentially justifiable. Yet Rashi is careful to forewarn that despite the defensibility of such an event, coupled with its accidental nature, one is not exempt from the violation of this Mitzvah, for it is not within the individual’s power to determine the legitimacy of one’s rightful death or not. Thus, the commandment to reinforce one’s rooftop stands as a great ethical-moral lesson on the legitimacy of preserving human life at all costs. One may be easily convinced that upon one’s own property, the right reserved to the owner to act and function as he pleases legitimates his dissent with the idea of protecting anyone and everyone who steps foot upon it. This is a counterfactual if not simply counterintuitive notion given the meaning of the Pasuk. Despite man’s said anthropocentrism as aforementioned, this Pasuk serves as Hashem’s reminder to the individual that despite what he may feel is good for him and how he feels when it comes to what is his own, this does not excuse him from his obligation to the greater good. Much like an individual who believes that car ownership gives them the right to do with it what they please, we acknowledge that the existing law requires that we consider others with cars and properties of their own as well when on the road, thus enforcing an aura of cooperation for the safety of the general public. This is exactly what the rooftop fence accomplishes as a Mitzvat Aseh, a commandment of doing rather than refraining from - and indeed it carries with it great reward - for, despite its visible incongruence to Shiluach HaKan, it carries a greater meaning than what meets the eye.
The succeeding three Mitzvot then come to highlight a critically important lesson in the treatment of day-to-day life as an observant Jew. “Lo Tizra Karmicha Kilayim Pen Tikdash HaMilei’ah HaZera Asher Tizra U’Tevu’at HaKarem,” “You shall not sow your vineyard with a second kind of seed, else the crop—from the seed you have sown—and the yield of the vineyard may not be used” (ibid. 22:9). Interestingly, the prohibition of Kilayim concerning seeds is only applicable to Eretz Yisrael (Sefer HaMitzvot, Mitzvot Lo Ta’aseh 193); yet, the punishment for Kilayim of this kind is likewise the more severe in contrast to the two Mitzvot which follow. It is important to realize the significance of this Mitzvah’s limited jurisdictional reach, given that some archaeological studies suggest that the cradle of modern humanity originates from what is now modern-day Israel. [3] What is so dastardly of Kilayim is not that it profanes the notion of HaKadosh Baruch Hu’s creation and endowment of the natural world with self-efficacy but because of what the mixture acknowledges. In the eyes of the Gemara (Chullin 115a) and Chizkuni (Devarim 22:9, s.v. Lo Tizra Karmecha) the abomination of Kilayim is that represents on both a biological and philosophical level, a divergence from the natural for the prospect of personal prosperity resultant from the mixture. Through the mixture of seed species, one creates a representational shift from the concept of methodological to metaphysical naturalism, driving Hashem out of the picture of creation, and recognizing only the “natural law” and mankind as its apprentice-turned-master as the hands involved in the continuation of species, particularly on the ecological level. This idea, per the Chizkuni, is exactly what Kilayim serves to warn of: one must be ever-careful to recognize the Yad Hashem existent in nature, for the mixture of species not simply uproots His creation, but the idea of humanity as a faculty itself. Thus, the Pesukim which follow take a similar tone when warning: “Lo Tacharosh BiShor U’BaChamor Yachdav. Lo Tilbash Sha’atnez Tzemer U’Pishtim Yachdav,” “You shall not plow with an ox and an ass together. You shall not plow with an ox and an ass together.” (ibid. 22:10-11). The beauty of creation is not simply derived from its having happened, but from continually happening in the sphere of the natural world, and presenting the world and its beholders with the beautifully diverse animal kingdom we see today. Judaism’s derivation from that of the ancient and modern western worlds was not that it fought progress and innovation through its “old-school” methods, but that it cherished these methods as a means of granting meaning to the innovations which followed, and following the natural rather than artificial and dangerous path. The prohibitions found here not only highlight Judaism’s lifelong goal of highlighting and preserving the beauty of the natural world but serving as a beacon of this very message since the beginning of human history. Such Mitzvot, with their unique ethical-moral characteristics, highlight only a sliver of what Judaism’s message is and what it seeks to achieve in this material world. But these Mitzvot are not the end, for there is yet another which presents us with the strong moral-bearing which we use as our guide through this world: the Tzitzit themselves.
“Gedilim Ta’aseh Lach Al Arba Kanfot Kesutecha Asher Techaseh Bah,” “You shall make fringes on the four corners of the garment with which you cover yourself (ibid. 22:12). What is the purpose of reintroducing the Mitzvah of Tzitzit into the equation of these precursory Pesukim, for did we not already find ourselves commanded in Parashat Shelach (BeMidbar 15:38-39) to adhere to the practice when presented with the opportunity to? Reiterating a takeaway point of that Parashah’s commandment of Tzitzit, we would be remiss if we did not note the unifying and underlying theme derived from Tzitzit: that of the remembrance of Kol HaTorah Kulah, the Torah in its entirety. What the commandment outlined in Shelach demonstrates is the philosophy of Tzitzit as a means of reminding the wearer of his obligation to Torah and Mitzvot, and to remember Hashem and His Torah whenever he glances at them. In the context of our Parashah, however, we see a somewhat updated version of this theme. We have witnessed the perpetuation of the idea of Chazal that “Schar Mitzvah Mitzvah ViSchar Aveirah Aveirah,” “the reward of a Mitzvah is another Mitzvah and the reward of a sin is another sin” (Avot 4:2). The Midrash (Midrash Tanchuma, Ki Teitzei 1), in line with the Mishnah, puts forth that the very connecting features between Shiluach HaKan lie not in any standard visual relationship to the heart of their actions, but in the heart required of their actions, for the reward of the former Mitzvah thus leads to another Mitzvah to fulfill. Yet we are not satisfied with such an explanation, particularly as the Mitzvot of Shiluach HaKan and Kilayim, respectively, may actually serve as corollaries to one another in the sequence of these Mitzvot in the following manner: with the performance of Shiluach HaKan on the most basic level, one accomplishes cognition and with awareness of his actions as both a Mitzvah required to be performed on behalf of the mother bird’s natural emotional response - which will be triggered soon after witnessing the event - and the metacognition of a Mitzvah with extreme ethical implications being implemented through these specific actions taken. Thus, with this latter metacognition, one will be able to further cognize his performance of other equally ethically and morally weighty Mitzvot which present themselves afterward; namely that of placing a fence around one’s roof. For what is truly accomplished with the development and unraveling of these Mitzvot is in fact higher-order processing from that of the most basic animalistic-maternal instinct and a recognition of the sacredness of life and assurance of its safety. regardless of personal interest. Following that we are starkly warned about the dangers of crossbreeding mixtures that disrupt the natural realm, for this can easily lead man astray from both God and the proper moral path. From there, one can then matriculate through the Mitzvot until the aggregate realization is that the Tzitzit reminds one of them all, helping to guide one in navigating the moral and ethical dilemmas they face every day while grounding them in the right path.
It is not a simple task to attain such a cognitive-emotional level, particularly as one must be able to fight their innate biases and prejudices to properly do so. Indeed seeing the objective moral standard hidden within the Pesukim considered here from the Parashah is not an easy task. Yet it is with these Mitzvot which we cognize the relative beauty of Torah and its rich moral lessons hidden within, lessons which, whether to our knowledge or not, will go wherever we do and be alongside us and presented to us whenever we actively seek them out. Citing a Midrash (Devarim Rab a, Ki Teitzei 3), Rav Aharon Lichtenstein (in a Sichah delivered at Yeshivat Har Etzion, Shabbat Parashat Ki Teitzei 5774/1994) famously explained: “Wherever you go, the Mitzvot go with you.” As Rav Lichtenstein asserts, there is no area of life not intimately connected to the realm of Halachah, and it is not sufficient to simply quip that whenever an individual engages the world, he will undoubtedly encounter a select number of Mitzvot along the way. Chazal’s assertion is clear: all areas of human existence and all pursuits are intimately connected to Torah, and guided by it. There is certainly no area of life, no action taken by any individual, that escapes the realm of Halachah, for the Zohar states “there is no place devoid of Him” (Tikkunei Zohar, Tikkun 57). Thus, one may engage the world in whatever manner he pleases, in whatever sphere he wishes to place himself in, but one will never escape the Mitzvot which encompass the entirety of his material world. To engage the world with the light of authentic Torah, one must be readily able to accept and emerge from whence he came (as Rav Lichtenstein concludes) “with a powerful sense that the Halachah accompanies one wherever one goes and whatever one does.” To this, it should be noted that the choice - while great and wide in expanse - is ours: do we wish to follow the Mitzvot, which in turn only lead us to further Mitzvot, until we have actively sanctified the name of Hashem and our people through the actualization of the highest ethical ideals, or do we wish to disregard said opportunities for the world of anthropocentrism, where man dominates and saves only himself?
[1] One should not perceive this statement to, in effect, be a refusal-of-recognition of the brilliance and pure Torah personalities and characters of the many Gaonim and Gedolim who succeeded. Rather, this statement calls attention to an aspect of the millenia of living in the Diaspora and its devastating Torah-intellectual effects that have resulted by noting what we so sorely lack.
[2] This is the english understanding of Mishneh Torah’s rough translation.