Ki Tavo - Like a Fish out of Water

B"H

N.B. The first draft of this from 2013 went in a completely different direction, due to my misreading the midrash. I kept the original title as I couldn't think of anything better...

I've also deliberately left Source 2 untranslated, as the 'translation' is best left to each midrash. All translations (including bold bits) are courtesy of Sefaria - I've italicised the sections of interest. Hope this isn't too confusing.

Sources:

1) Devarim 26:16

 

 הַיּוֹם הַזֶּה יְהֹוָה אֱלֹהֶיךָ מְצַוְּךָ לַעֲשׂוֹת אֶת־הַחֻקִּים הָאֵלֶּה וְאֶת־הַמִּשְׁפָּטִים וְשָׁמַרְתָּ וְעָשִׂיתָ אוֹתָם בְּכׇל־לְבָבְךָ וּבְכׇל־נַפְשֶׁךָ׃

 

 

"The LORD your God commands you this day to observe these laws and rules; observe them faithfully with all your heart and soul."

 

2) Tehillim 17:14

מִ֥מְתִֽים יָדְךָ֨ ׀ יְהֹוָ֡ה מִֽמְתִ֬ים מֵחֶ֗לֶד חֶלְקָ֥ם בַּֽחַיִּים֮ (וצפינך) [וּֽצְפוּנְךָ֮] תְּמַלֵּ֢א בִ֫טְנָ֥ם יִשְׂבְּע֥וּ בָנִ֑ים וְהִנִּ֥יחוּ יִ֝תְרָ֗ם לְעוֹלְלֵיהֶֽם׃

 

 

3) Talmud Bavli, Berachot 61b (abridged)

רַבִּי עֲקִיבָא אוֹמֵר: ״בְּכָל נַפְשְׁךָ״ אֲפִילּוּ נוֹטֵל אֶת נַפְשְׁךָ.[...] 

Rabbi Akiva says: “With all your soul” means: Even if God takes your soul.

 תָּנוּ רַבָּנַן: פַּעַם אַחַת גָּזְרָה מַלְכוּת הָרְשָׁעָה שֶׁלֹּא יַעַסְקוּ יִשְׂרָאֵל בַּתּוֹרָה. בָּא פַּפּוּס בֶּן יְהוּדָה וּמְצָאוֹ לְרַבִּי עֲקִיבָא שֶׁהָיָה מַקְהִיל קְהִלּוֹת בָּרַבִּים וְעוֹסֵק בַּתּוֹרָה. אָמַר לוֹ: עֲקִיבָא אִי אַתָּה מִתְיָרֵא מִפְּנֵי מַלְכוּת? 

 The Gemara relates at length how Rabbi Akiva fulfilled these directives. The Sages taught: One time, after the bar Kokheva rebellion, the evil empire of Rome decreed that Israel may not engage in the study and practice of Torah. Pappos ben Yehuda came and found Rabbi Akiva, who was convening assemblies in public and engaging in Torah study. Pappos said to him: Akiva, are you not afraid of the empire?

אָמַר לוֹ: אֶמְשׁוֹל לְךָ מָשָׁל, לְמָה הַדָּבָר דּוֹמֶה — לְשׁוּעָל שֶׁהָיָה מְהַלֵּךְ עַל גַּב הַנָּהָר, וְרָאָה דָּגִים שֶׁהָיוּ מִתְקַבְּצִים מִמָּקוֹם לְמָקוֹם. אָמַר לָהֶם: מִפְּנֵי מָה אַתֶּם בּוֹרְחִים? אָמְרוּ לוֹ: מִפְּנֵי רְשָׁתוֹת שֶׁמְּבִיאִין עָלֵינוּ בְּנֵי אָדָם. אָמַר לָהֶם: רְצוֹנְכֶם שֶׁתַּעֲלוּ לַיַּבָּשָׁה, וְנָדוּר אֲנִי וְאַתֶּם, כְּשֵׁם שֶׁדָּרוּ אֲבוֹתַי עִם אֲבוֹתֵיכֶם? אָמְרוּ לוֹ: אַתָּה הוּא שֶׁאוֹמְרִים עָלֶיךָ פִּקֵּחַ שֶׁבַּחַיּוֹת?! לֹא פִּקֵּחַ אַתָּה, אֶלָּא טִפֵּשׁ אַתָּה! וּמָה בִּמְקוֹם חִיּוּתֵנוּ, אָנוּ מִתְיָרְאִין, בִּמְקוֹם מִיתָתֵנוּ — עַל אַחַת כַּמָּה וְכַמָּה. אַף אֲנַחְנוּ עַכְשָׁיו שֶׁאָנוּ יוֹשְׁבִים וְעוֹסְקִים בַּתּוֹרָה, שֶׁכָּתוּב בָּהּ: ״כִּי הוּא חַיֶּיךָ וְאֹרֶךְ יָמֶיךָ״, כָּךְ, אִם אָנוּ הוֹלְכִים וּמְבַטְּלִים מִמֶּנָּה — עַל אַחַת כַּמָּה וְכַמָּה!  [...]

 Rabbi Akiva answered him: I will relate a parable. To what can this be compared? It is like a fox walking along a riverbank when he sees fish gathering and fleeing from place to place.
The fox said to them: From what are you fleeing?
They said to him: We are fleeing from the nets that people cast upon us.
He said to them: Do you wish to come up onto dry land, and we will reside together just as my ancestors resided with your ancestors?
The fish said to him: You are the one of whom they say, he is the cleverest of animals? You are not clever; you are a fool. If we are afraid in the water, our natural habitat which gives us life, then in a habitat that causes our death, all the more so.
The moral is: So too, we Jews, now that we sit and engage in Torah study, about which it is written: “For that is your life, and the length of your days” (Deuteronomy 30:20), we fear the empire to this extent; if we proceed to sit idle from its study, as its abandonment is the habitat that causes our death, all the more so will we fear the empire.

בְּשָׁעָה שֶׁהוֹצִיאוּ אֶת רַבִּי עֲקִיבָא לַהֲרִיגָה זְמַן קְרִיאַת שְׁמַע הָיָה, וְהָיוּ סוֹרְקִים אֶת בְּשָׂרוֹ בְּמַסְרְקוֹת שֶׁל בַּרְזֶל, וְהָיָה מְקַבֵּל עָלָיו עוֹל מַלְכוּת שָׁמַיִם. אָמְרוּ לוֹ תַּלְמִידָיו: רַבֵּינוּ, עַד כָּאן?! אָמַר לָהֶם: כׇּל יָמַי הָיִיתִי מִצְטַעֵר עַל פָּסוּק זֶה ״בְּכָל נַפְשְׁךָ״ אֲפִילּוּ נוֹטֵל אֶת נִשְׁמָתְךָ. אָמַרְתִּי: מָתַי יָבֹא לְיָדִי וַאֲקַיְּימֶנּוּ, וְעַכְשָׁיו שֶׁבָּא לְיָדִי, לֹא אֲקַיְּימֶנּוּ? הָיָה מַאֲרִיךְ בְּ״אֶחָד״, עַד שֶׁיָּצְתָה נִשְׁמָתוֹ בְּ״אֶחָד״. יָצְתָה בַּת קוֹל וְאָמְרָה: ״אַשְׁרֶיךָ רַבִּי עֲקִיבָא שֶׁיָּצְאָה נִשְׁמָתְךָ בְּאֶחָד״.

 The Gemara relates: When they took Rabbi Akiva out to be executed, it was time for the recitation of Shema. And they were raking his flesh with iron combs, and he was reciting Shema, thereby accepting upon himself the yoke of Heaven. His students said to him: Our teacher, even now, as you suffer, you recite Shema? He said to them: All my days I have been troubled by the verse: With all your soul, meaning: Even if God takes your soul. I said to myself: When will the opportunity be afforded me to fulfill this verse? Now that it has been afforded me, shall I not fulfill it? He prolonged his uttering of the word: One, until his soul left his body as he uttered his final word: One. A voice descended from heaven and said: Happy are you, Rabbi Akiva, that your soul left your body as you uttered: One.

אָמְרוּ מַלְאֲכֵי הַשָּׁרֵת לִפְנֵי הַקָּדוֹשׁ בָּרוּךְ הוּא: זוֹ תּוֹרָה וְזוֹ שְׂכָרָהּ? ״מִמְתִים יָדְךָ ה׳ מִמְתִים וְגוֹ׳״! אָמַר לָהֶם: ״חֶלְקָם בַּחַיִּים״. יָצְתָה בַּת קוֹל וְאָמְרָה: ״אַשְׁרֶיךָ רַבִּי עֲקִיבָא שֶׁאַתָּה מְזֻומָּן לְחַיֵּי הָעוֹלָם הַבָּא״.

 The ministering angels said before the Holy One, Blessed be He: This is Torah and this its reward? As it is stated: “From death, by Your hand, O Lord, from death of the world” (Psalms 17:14); Your hand, God, kills and does not save. God said the end of the verse to the ministering angels: “Whose portion is in this life.” And then a Divine Voice emerged and said: Happy are you, Rabbi Akiva, as you are destined for life in the World-to-Come, as your portion is already in eternal life. 

 

4) Midrash Tanchuma Ki Tavo, Chapter 2 (abridged) 

[...] וּבְכָל נַפְשְׁכֶם (שם), אֲפִלּוּ נוֹטֵל אֶת נַפְשְׁךָ. פַּעַם אֶחָד גָּזְרָה מַלְכוּת יָוָן שְׁמָד עַל יִשְׂרָאֵל שֶׁלֹּא יַעַסְקוּ בַּתּוֹרָה. הָלַךְ רַבִּי עֲקִיבָא וַחֲבֵרָיו וְעָסְקוּ בַּתּוֹרָה [...] וּכְשֶׁהוֹצִיאוּ אֶת רַבִּי עֲקִיבָא לַהֲרִיגָה, זְמַן קְרִיאַת שְׁמַע הָיָה, וְהָיוּ מְסָרְקִין אֶת בְּשָׂרוֹ בַּמַּסְרְקוֹת שֶׁל בַּרְזֶל, וְהוּא קָרָא קְרִיאַת שְׁמַע. וְעָלָיו אָמַר דָּוִד, מִמְּתִים יָדְךָ ה' מִמְּתִים מֵחֶלֶד חֶלְקָם וְגוֹ' (תהלים יז, יד). אָמַר רַבִּי חֲנִינָא בַּר פַּפָּא, אַל תְּהִי קוֹרֵא מִמְּתִים, אֶלָּא קוֹרֵא מְמִיתִים, עַל תּוֹרָה שֶׁנִּתְנָה עַל יָדְךָ. בְּנֵי אָדָם שֶׁרוֹאִים אוֹתָן אָמַר, חֲלֻדָּה מְלֵאִין, חַטָּאִין יֵשׁ בְּיָדָן, לְפִיכָךְ הֵן נֶהֱרָגִין, וְכֵן הֵן מֵתִים מֵחֶלֶד. וְהֵן אֵינָן יוֹדְעִין שֶׁחֶלְקָן בְּחַיֵּי עוֹלָם וְכָל טוֹבָה צְפוּנָה לָהֶם, שֶׁנֶּאֱמַר: וּצְפוּנְךָ תְּמַלֵּא בִטְנָם (שם). וְלֹא עוֹד, אֶלָּא שֶׁזּוֹכִין לְזַרְעָם אַחֲרֵיהֶם.[...]

 “And with all your soul (nafsheka) [Deut 26:16],” even though [someone] takes your life (nafshekha). On one occasion [the Romans] decreed a religious persecution against Israel, in which they were not to occupy themselves with the Torah. R. Aqiva and his colleagues proceeded to [ignore it and] occupy themselves with the Torah. [...] [Subsequently] when they brought out R. Aqiva for execution, it was time to recite the Shema'. While they combed his flesh with combs of iron, he was calling out the recitation of the Shema'. About him David has said (in Ps. 17:14), “Of those who die by your hand, O Lord […] from the world (heled), their portion [is life].” R. Hanina bar Pappa said, “Do not read, ‘of those who die,’ but, ‘those who kill,’ [because they kill themselves] for the sake of the Torah, which was given [by Your hand].” When people see them, they say, “They are full of rust (hulda), they have sins on their hand; that is the reason they were killed, and so they die from the world.” But they do not know that their portion is in eternal life and that everything good is being kept in store for them. It is so stated (ibid. cont.), “may You fill their belly with what You have kept in store for them.” And not only that, but they attain merit for their children after them. [...]

**********************************************************

Funnily enough, I've ended up doing another 'compare and contrast' of the same basic midrash between the Midrash Tanchuma and the Gemara (see my earlier post on Shoftim).

 

This time around, we have Rabbi Akiva's famous mashal (parable) of the fox and the fish. In the mashal, the fox unsuccessfully tries to tempt the fish (i.e. the Jews) to leave the danger they face - by swimming in 'the water of Torah' - for certain death on dry land i.e. life without Torah study.  

 

As well known as this mashal is, in both versions it actually forms part of a longer teaching about R' Akiva's martyrdom and his commitment to G-d with 'all his soul', even at the point of death - the connection, presumably, being his insistence on continuing to teach Torah despite this resulting in his arrest and death. For me, the interesting part is actually how each version deals with what happens after the mashal, and the age-old question of 'why do bad things happen to good people?'

 

First, the basics. The Gemara version (source 3) flows from a discussion of the different elements of the Shema - in particular, what the difference is between loving G-d 'with all your soul' and 'with all your might [me'odecha]'*. R' Akiva emphasises that loving G-d 'with all your soul' means that we must do so even if G-d Himself takes our soul i.e. at death. From this starting point, the Gemara tells us about Rabbi Akiva's mashal and his recitation of the Shema on his deathbed in fulfilment of his teaching.

 

The Midrash Tanchuma (see source 4) instead 'hooks' this entire midrash to Ki Tavo via the phrase 'with all your heart and with all your soul' in Source 1. While this is not the exact text of the Shema (which comes earlier in Devarim), the midrash interprets 'with all your soul' as meaning 'even if someone takes your soul' (i.e. life) in line with R' Akiva's teaching, forming the link to his mashal and martyrdom.

The linchpin for both versions is their interpretation of a verse from Tehillim (see source 2) in light of R' Akiva's martyrdom. This is a difficult verse to understand in isolation (I certainly struggled), and each version interprets it in different ways. 

 

In the Midrash Tanchuma, R' Chanina bar Pappa uses source 2 to suggest that anyone observing R' Akiva's painful death** may assume that he was full of 'rust' (i.e. sin), hence meeting his end in this way. However, according to R' Chanina this approach is wrong because the end of the verse shows that R' Akiva was in fact destined for eternal life - just in Olam Haba'ah (the world to come), rather than this world.

 

This is odd. While it's not a philosophy I find easy to stomach, the assumption that someone deserved to die a horrible death because of their sins may well apply to an ordinary person***. But we are talking about the famous R' Akiva here - and if we needed a reminder about what sort of a person he was, the midrash itself has just shown us his own dedication to Torah through the mashal of the fox and the fish. So, why would anyone make such an assumption about R' Akiva?! It almost feels as if the midrash is making a 'straw man' argument to prove a point about R' Akiva's reward in the next world, rather than confronting the challenge of how he could meet such an end in this one.

The Gemara, by contrast, does take on this moral challenge. Here, two groups incredulously question aspects of R' Akiva's death. Firstly, his students ask him 'ad kan?!' - literally 'until here?!'. How can he still have the faith and presence of mind to recite Shema while being tortured by the Romans? A teacher to the end, R' Akiva explains that this is his chance to finally fulfil the command of loving G-d 'with all your soul' as if this means 'even as G-d is taking your soul', just as he himself has taught.

However, it is not humans but angels who raise the real dilemma with G-d Himself - 'this is your Torah and this the reward?' How can it be right that R' Akiva, who risked all for the Torah, be rewarded with such a brutal death? Here, the first part of the same verse that R' Chanina bar Pappa drew on is both reinterpreted (as meaning that G-d kills and does not save men from death), and used as a protest against this idea applying to R' Akiva. G-d responds that the verse's conclusion means that it only applies to those whose reward lies in this world - not to R' Akiva, whose reward is guaranteed in the next instead. 

Both groups of questioners are ultimately answered by a bat kol  (a voice from heaven) declaring 'Happy are you, R' Akiva [...]', telling us that despite appearances R' Akiva did meet a 'good' end. This is, more or less, the same as R' Chanina bar Pappa's conclusion in the Midrash Tanchuma. 

 

However, it is noticeable is that - even though the broad message is the same - the Gemara is more willing to directly confront the problem of 'why bad things happen to good people' posed by R' Akiva's martyrdom than the Midrash Tanchuma, giving voice to our cry of pain over his fate. A similar contrast - between idealism and messy reality - can be seen in my Shoftim post. Perhaps the answer lies in the different purpose of each text - the Midrash Tanchuma often wants to teach a particular lesson in black-and-white (a.k.a the Rabbi's Shabbat drasha), whereas the Gemara gives room for morally ambiguous 'shades of grey'.

 

RPT

 

* An aside - ages ago, I remember hearing the idea that 'me'odecha' really means 'your very veryness', or perhaps 'your essence', which makes sense from a Hebrew perspective. The person citing this happened to be from the Conservative movement, but I would love to know if there is actually a frum source saying this...

** It's easy on a casual read to miss how excruciating R' Akiva's torture and death would have been, both to experience and to watch. For me, when I think of 'combing' or 'combs' my first association is with combing hair, or at a pass wool - both nice, gentle actions. It's only when you pause to actually take in what is happening here - and the translation at source 3 makes this clearer - that you realise how horrific it was and why these midrashim/aggadot react in they way they do.

*** On a first reading I actually misread R' Chanina as referring to Pappas ben Yehuda, not R' Akiva - hence the original draft and blog title.

Ki Tetze - Cutting Off the Source

B'H

 

Parental Advisory warning on this one!

 

Also, these midrashim are super long - apologies if the translations seem disjointed, as I've tried to pull out the relevant bits. I'm fully aware that the sources are longer than the actual drasha.

Sources (all translations courtesy Sefaria.com, minor edits my own):

1) Devarim 25:17-19

 

זָכוֹר אֵת אֲשֶׁר־עָשָׂה לְךָ עֲמָלֵק בַּדֶּרֶךְ בְּצֵאתְכֶם מִמִּצְרָיִם׃

אֲשֶׁר קָרְךָ בַּדֶּרֶךְ וַיְזַנֵּב בְּךָ כׇּל־הַנֶּחֱשָׁלִים אַחֲרֶיךָ וְאַתָּה עָיֵף וְיָגֵעַ וְלֹא יָרֵא אֱלֹהִים׃

וְהָיָה בְּהָנִיחַ יְהֹוָה אֱלֹהֶיךָ  לְךָ מִכׇּל־אֹיְבֶיךָ מִסָּבִיב בָּאָרֶץ אֲשֶׁר יְהֹוָה־אֱלֹהֶיךָ נֹתֵן לְךָ נַחֲלָה לְרִשְׁתָּהּ תִּמְחֶה אֶת־זֵכֶר עֲמָלֵק מִתַּחַת הַשָּׁמָיִם לֹא תִּשְׁכָּח׃ 

 

"Remember what Amalek did to you on your journey, after you left Egypt—how, undeterred by fear of God, he surprised you on the march, when you were famished and weary, and cut down all the stragglers in your rear.  Therefore, when the LORD your God grants you safety from all your enemies around you, in the land that the LORD your God is giving you as a hereditary portion, you shall blot out the memory of Amalek from under heaven. Do not forget!"

2) Midrash Tanchuma Ki Tetze, Chapter 4 - Hebrew text (in full) here. Selections from English translation below:

"(Deut. 25:17:) “Remember what Amalek (Esau's grandson) did to you.” [...] 

 

[(Ps. 109:14:) “And let not the sin of his mother be blotted out.”] But how had he sinned against his mother? R. Judah, R. Nehemiah, and [our] masters [differ]. R. Judah says, “When he left his mother's belly, he severed her uterus, with the result that she would not bear [any more children]. This is what is written (in Amos 1:11), ‘because he (i.e., Edom, which is Esau) pursued his brother with the sword and repressed his pity (rachamiv),’ as it is written, ‘his uterus (rechemo).’” Moreover, R. Berekhyah says, “You should not say [this] in reference to when he had left [his mother's uterus].Rather, as he was leaving his mother's uterus, his zerta' [i.e., fist] was stretched out against him (i.e., against his brother Jacob).” What is the reasoning? (Ps. 58:4:) “The wicked go astray (zoru) from the womb.” 

 

R. Nehemiah says, “He was the cause of her not producing twelve tribes.” As Rav Huna has said, “Rebekah was worthy of producing twelve tribes, as stated (in Gen. 25:23), ‘And the Lord said to her, “Two nations are [in your womb].” Here are two. (Ibid., cont.:) “and two peoples.” Here are four. (Ibid., cont.:) “And one people shall be stronger than the other.” Here are six. (Ibid., cont.:) “And the elder shall serve the younger.”’ Here are eight. (Vs. 24:) ‘And behold there were twins in her womb.’ Here are ten. (Vs. 25:) ‘The first came out ruddy.’ That is eleven. (Vs. 26:) ‘And afterward his brother came out.’ Here are twelve.” And there are some who bring this [idea] from here (vs. 22); “and she said, ‘If so, why am I here (zh)?’” By gematria. z (=7) + h (=5) [for a total of] twelve. [...]"

 

3) Midrash Tanchuma Ki Tetze, Chapter 9 - Hebrew text (in full) here. Abridged English translation below:

"[...] R. Judan bar Gadya, R. Joshua ben Levi, and the masters [differ]. R. Judan bar Gadya said, “Remember what [our neighbor Amalek] did to us in the penis, which is attached to the lap (heq) [i.e., to the center] of a man.” And this agrees with what R. Hanina bar Shilqa, R. Joshua ben Levi and R. Jochanan said, “What did the House of Amalek do to Israel? They cut off their male organs and flung them heavenward, as they said, ‘This is what You have chosen, take for Yourself what You have chosen.’ This is related to the verse (in Ps. 9:6), ‘their taunt with which they have taunted You, O Lord.’” [...] When Samuel came, he repaid them, as stated (in I Sam. 15:33), “then Samuel hewed Agag.” What did he do to him?[...] Rabbi said, “He castrated him [...], as stated (in I Sam. 15:33), ‘But Samuel said, “As your sword has made women bereaved, so shall your mother be bereaved among women.”’” R. Levi said, “Moses also gave a hint to Israel in the Torah (about Agag's castration), since it is stated (in Deut. 25:11-12), ‘When two men get into a fight with each other, and the wife of one draws near [to save her husband from the hand of the one smiting him, if she puts out with her hand and grabs [the other man] by his male organs.] Then you shall cut off her hand….’ What is written after that (in vs. 17), ‘Remember what Amalek did to you. [...]’”

4) Midrash Tanchuma Ki Tetze, Chapter 10 - Hebrew text (in full) here. Abridged English translation below:

"(Deut. 25:18, cont.:) "And he cut off all who were lagging behind you". He smote them with a blow to the tail [alt. trans: 'male organ']. And this agrees with what R. Hanina bar Shilqa, said, “What did the House of Amalek do to Israel? They cut off their male organs and flung them heavenward, as they said, ‘This is what You have chosen, take for Yourself what You have chosen. [...]".

 

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The infamous curse against Amalek at the end of parshat Ki Tetze is the subject of many midrashim, especially in seeking to explain exactly what it was that Amalek is supposed to have done to B'nei Israel. Some of these midrashic explanations share a common theme - that of Amalek destroying B'nei Israel's reproductive capacity, and therefore preventing future generations from even being born.

The selections brought at source 2 above form part of a longer midrash which discusses the sins that Esav, Amalek's ancestor, committed against his righteous forefathers - thereby justifying him being cursed in this way. The midrash tries to deal with the problem of how Esav could be so cursed despite sharing exactly the same ancestry as Yaakov. As part of this, we find a dispute over exactly what it is that Esav is supposed to have done to his mother, Rivka. 

 

One view is perhaps more well known - that Esav's evil reputation was such that when Rivka died, her funeral possession was conducted secretly at night to avoid any onlookers cursing her as Esav's mother. However, the conflicting views of Rabbi Yehuda and Rabbi Nechemya both argue that Esav's sin was hampering Rivka from giving birth, even to the point of destroying the source of life that was in her womb. Rabbi Yehuda states explicitly his version of events - that, as Esav was being born, he somehow destroyed Rivka's fallopian tubes and womb in such a way as to prevent her ever conceiving again. Rabbi Nechemya, meantime, does not explicitly state how Esav prevents Rivka giving birth again but does say that, had it not been for his actions, Rivka would have merited to give birth to all twelve tribes of Israel herself rather than leaving this to Yaakov's wives in the next generation.

The midrashim at sources 3 and 4 above introduce a different idea directly related to our source text in parshat Ki Tetze - that the act of 'cutting off' referred to here ('vay'zanev bekha') was in fact Amalek castrating the men of B'nei Israel when they were travelling from Egypt. This interpretation is cited in the name of several Sages including Rabbi Yochanan, Rabbi Yehoshua ben Levi and Rabbi Chama bar Shakla/Rabbi Chinena bar Shikla, but all are in agreement - after castration, Amalek threw up the severed male organs in the air as a taunt about circumcision and said 'This is what you have chosen? Go take what you have chosen!'. 

As we can see, in both sets of midrashim Esav/Amalek is striking directly at the reproductive parts of B'nei Israel/Rivka Imeinu, and therefore at the source of human life itself. Esav/Amalek's intent appears to be literally genocidal - to prevent the birth of future generations of B'nei Israel. 

 

Perhaps it is therefore appropriate that the mitzvah commanded here in parshat Ki Tetze is to wipe out 'zecher Amalek' from under the heavens. As 'zecher' means not only 'memory' but also 'seed', this therefore appears to be an act of retribution to remove Amalek's descendants from the earth - just as Amalek/Esav sought to do to us as the descendants of B'nei Israel. 

RPT

Shoftim - Justice for all?

B"H

Sources (all translations courtesy of Sefaria):

1) Devarim 16:19

לֹא־תַטֶּה מִשְׁפָּט לֹא תַכִּיר פָּנִים [...]׃  

 

You shall not judge unfairly: you shall show no partiality[...].

 

2) Midrash Tanchuma Shoftim, Siman 7 - for full text, see here.

Extract below:

לֹא תַּטֶּה מִשְׁפָּט, צָרִיךְ שֶׁיִּהְיוּ הַדַּיָּנִין רוֹאִין כְּאִלּוּ שְׁכִינָה בֵּינֵיהֶם, שֶׁנֶּאֱמַר: בְּקֶרֶב אֱלֹהִים יִשְׁפֹּט (שם פב, א), מִכָּאן לְבַעֲלֵי דִּינִין שֶׁיִּנְהֲגוּ אֵימָה לְעַצְמָן. מַעֲשֶׂה בְּאֶחָד שֶׁהָיָה לוֹ דִּין עִם מֶלֶךְ מִמַּלְכֵי בֵּית חַשְׁמוֹנַאי, וְעָמַד לִפְנֵי שִׁמְעוֹן בֶּן שֶׁטַח. אָמַר לֵיהּ: דִּין יֵשׁ לִי אֵצֶל הַמֶּלֶךְ. אָמַר שִׁמְעוֹן בֶּן שֶׁטַח לָהֶם לְאוֹתָן דַּיָּנִין שֶׁדָּנִין עִמּוֹ, אִם מְשַׁגֵּר אֲנִי בִּשְׁבִיל הַמֶּלֶךְ, אַתֶּם מוֹכִיחִים אוֹתוֹ. אָמְרוּ לוֹ: הֵן. שִׁגֵּר בִּשְׁבִילוֹ. בָּא, וְנָתְנוּ אֶת כִּסְּאוֹ וְיָשַׁב בְּצַד שִׁמְעוֹן. אָמַר לוֹ שִׁמְעוֹן בֶּן שֶׁטַח, עֲמֹד עַל רַגְלֶיךָ וְתֵן אֶת הַדִּין. אָמַר לוֹ: וְכִי דָּנִין אֶת הַמֶּלֶךְ. פָּנָה לִימִינוֹ, כָּבְשׁוּ הַדַּיָּנִין אֶת פְּנֵיהֶם בַּקַּרְקַע. לִשְׂמֹאלוֹ, כָּבְשׁוּ פְּנֵיהֶם בַּקַּרְקַע. בָּא הַמַּלְאָךְ וַחֲבָטָן בַּקַּרְקַע עַד שֶׁיָּצְאָה נִשְׁמָתָן. מִיָּד נִזְדַּעְזֵעַ הַמֶּלֶךְ. מִיָּד אָמַר לֵיהּ שִׁמְעוֹן בֶּן שֶׁטַח, עֲמֹד עַל רַגְלֶיךָ וְתֵן אֶת הַדִּין, שֶׁלֹּא לְפָנַי אַתָּה עוֹמֵד, אֶלָּא לִפְנֵי מִי שֶׁאָמַר וְהָיָה הָעוֹלָם, שֶׁנֶּאֱמַר: וְעָמְדוּ שְׁנֵי הָאֲנָשִׁים אֲשֶׁר לָהֶם הָרִיב לִפְנֵי ה' (דברים יט, יז). מִיָּד עָמַד עַל רַגְלָיו וְנָתַן אֶת הַדִּין. לְכָךְ צָרִיךְ שֶׁיְּהוּ בַּעֲלֵי דִּינִין נוֹהֲגִין אֵימָה בְּעַצְמָן, וְהַדַּיָּנִין יְהוּ נוֹהֲגִין אֵימָה בְּעַצְמָן, כִּבְיָכוֹל לְהַקָּדוֹשׁ בָּרוּךְ הוּא הֵן דָּנִין. שֶׁכָּךְ אָמַר יְהוֹשָׁפָט לַדַּיָּנִין, כִּי לֹא לָאָדָם תִּשְׁפֹּטוּ כִּי לַה' (דה״‎ב יט, ו)

 

“You shall not turn aside justice.” Let the judges always feel as if the Divine Presence is among them, as stated (in Ps. 82:1), “[God stands in the divine congregation;] he pronounces judgment in the midst of powers.” From here it follows for litigants that they conduct themselves in awe. There is a story about a certain person who had a lawsuit with a king, one of the kings of the Hasmonean dynasty. He came and stood before Simeon ben Shetah. He said to him, “I have a lawsuit with the king.” Simeon ben Shetah said to those judges who were judging along with him, “If I send for the king, will you reprimand him?” They told him, “Yes.” He sent for him. He came and put his throne beside Simeon ben Shetah. Simeon ben Shetah said to him, “Stand on your feet and give satisfaction." He said to him, “Do we judge a king?” [Simeon ben Shetah] turned to the right, and the judges [on the right] pressed their faces on the ground (to hide them). He turned to the left, and [those on the left] pressed their faces on the ground. The angel came and beat them on the ground, until their souls left them. Immediately the king trembled. Simeon ben Shetah said to him, “Stand on your feet and give satisfaction, since you are not standing before me, but before the One who spoke and the world came into being, as stated (in Deut. 19:17), ‘The two parties to the dispute shall stand before the Lord.’” He immediately stood on his feet and gave satisfaction. Hence the litigants need to conduct themselves in awe and the judges need to conduct themselves in awe; as they are rendering judgment, as it were, for the Holy One, blessed be He. Therefore Jehoshaphat said to the judges (in II Chron. 19:6), “[Consider what you are doing], since you are not rendering judgment for humans but for the Lord.”

3) Talmud Bavli, Sanhedrin 19a-b

אלא מלכי ישראל מ"ט לא משום מעשה שהיה דעבדיה דינאי מלכא קטל נפשא אמר להו שמעון בן שטח לחכמים תנו עיניכם בו ונדוננו שלחו ליה עבדך קטל נפשא שדריה להו שלחו לי' תא אנת נמי להכא (שמות כא, כט) והועד בבעליו אמרה תורה יבא בעל השור ויעמוד על שורו  

The Gemara asks: But what is the reason that others do not judge the kings of Israel? It is because of an incident that happened, as the slave of Yannai the king killed a person. Shimon ben Shataḥ said to the Sages: Put your eyes on him and let us judge him. They sent word to Yannai: Your slave killed a person. Yannai sent the slave to them. They sent word to Yannai: You also come here, as the verse states with regard to an ox that gored a person to death: “He should be testified against with his owner” (Exodus 21:29). The Torah stated: The owner of the ox should come and stand over his ox.

אתא ויתיב א"ל שמעון בן שטח ינאי המלך עמוד על רגליך ויעידו בך ולא לפנינו אתה עומד אלא לפני מי שאמר והיה העולם אתה עומד שנאמר (דברים יט, יז) ועמדו שני האנשים אשר להם הריב וגו' אמר לו לא כשתאמר אתה אלא כמה שיאמרו חבריך  

The Gemara continues to narrate the incident: Yannai came and sat down. Shimon ben Shataḥ said to him: Yannai the king, stand on your feet and witnesses will testify against you. And it is not before us that you are standing, to give us honor, but it is before the One Who spoke and the world came into being that you are standing, as it is stated: “Then both the people, between whom the controversy is, shall stand before the Lord, before the priests and the judges that shall be in those days” (Deuteronomy 19:17). Yannai the king said to him: I will not stand when you alone say this to me, but according to what your colleagues say, and if the whole court tells me, I will stand.

נפנה לימינו כבשו פניהם בקרקע נפנה לשמאלו וכבשו פניהם בקרקע אמר להן שמעון בן שטח בעלי מחשבות אתם יבא בעל מחשבות ויפרע מכם מיד בא גבריאל וחבטן בקרקע ומתו באותה שעה אמרו מלך לא דן ולא דנין אותו לא מעיד ולא מעידין אותו:  

Shimon ben Shataḥ turned to his right. The judges forced their faces to the ground out of fear and said nothing. He turned to his left, and they forced their faces to the ground and said nothing. Shimon ben Shataḥ said to them: You are masters of thoughts, enjoying your private thoughts, and not speaking. May the Master of thoughts, God, come and punish you. Immediately, the angel Gabriel came and struck those judges to the ground, and they died. At that moment, when they saw that the Sanhedrin does not have power to force the king to heed its instructions, the Sages said: A king does not judge others and others do not judge him, and he does not testify and others do not testify concerning him, due to the danger of the matter.

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Parshat Shoftim sets out the principles of the justice system which is to apply to the Jewish nation. Revolutionary for their time, these principles have resonated throughout Western history until today. One key aspect shown in Source 1) above is the idea that all are equal before the law, with no favouritism to be shown to any party - whether to the poor or to the king himself. In a world in which idolatry was widespread and rulers were often seen as having quasi-divine status - giving them ultimate authority over their subjects - this was radical indeed.

In Source 2) above*, the Midrash Tanchuma takes this idea further by showing that all involved in the justice process - both those who are judging and those who are to be judged - should conduct themselves with the awesome thought that they are standing before G-d Himself. Such a role requires respect and participation even from the king who - crucially - is not above the power of the court. However, as another version of this midrash at Source 3) shows, unfortunately human judges can fail to live up to this responsibility, with the tragic result that we (mostly) lost the jurisdiction to judge our monarchs.

Our 'hero' in both versions of this midrash is R' Shimon ben Shetach, brother-in-law of the Hasmonean King Alexander Yannai. R' Shimon appears many times in Rabbinic literature as someone who is unafraid of acting in line with a higher sense of 'justice', even when he stands to lose by doing so.

In both versions, R' Shimon ben Shetach summons his brother-in-law King Yannai to court to stand trial. In both cases, R' Shimon's fellow judges initially assure him that they will judge the king, only to hesitate and turn away out of fear when their authority is challenged by the king himself. This is their undoing - in both cases (and in Source 3, after R' Shimon calls on G-d to hold the judges to account), they are struck dead by a heavenly angel for their cowardice.

In Source 2, the midrash is bookended by opening and closing proof-texts from Tehillim and Divrei HaYamim which juxtapose the central message - that all parties should feel that they are in G-d's presence - with verses which echo the language of Source 1) regarding not showing favouritism in judgment (see here and here). This version of the midrash successfully links the two ideas - after the death of the judges, King Yannai 'trembles' as he recognises that he is in fact standing before G-d (as pointed out by R' Shimon ben Shetach) and thereafter accounts for himself as a defendant in the case. The principle of impartial justice seems to have been upheld, with the king's recognition that when it comes to the courtroom he must submit to the higher authority of G-d Himself. R' Shimon ben Shetach's stance - that even a king is not above the law - is vindicated.**

However, in Source 3 things do not end so happily. Here, the midrash is brought to justify an enactment that kings of Israel who are not of Davidic descent may no longer be judged by the Sanhedrin or Jewish courts. This enactment was a direct result of the incident related in the midrash - whereby the judges were struck dead for their reluctance to answer King Yannai's challenge and support R' Shimon ben Shetach - as it showed the inherent risks for human judges faced with the task of calling a king to account in court. Unfortunately, human fallibility means that the lofty ideal of 'justice for all' espoused by the Torah and R' Shimon ben Shetach is now restricted in its practical application - the king may no longer be judged by a human court, but only directly by G-d Himself. 

A lesson for us is that, while we may have very worthy principles, there is often a heavy burden of responsibility involved in putting these into practice - especially when this means challenging the prevailing powers of our times. Nevertheless, we should not be afraid to act in accordance with our principles, as otherwise their full power may be lost to future generations. 

RPT

 

* The full midrash is actually made up of three sections. I've chosen to focus on the middle section (the longest) to be able to compare-and-contrast with the version in Sanhedrin. However, the opening and closing sections are worthy of study in their own right as they bring in more intertextual ties with avoda zara and leave a few tantalising loose ends. One for another time...

 

** It's easy to be reminded of the English Civil Wars and the judgment - and execution - of Charles I which formed a turning point in British history. Like King Yannai, Charles challenged the courts' authority - unlike King Yannai, he refused point-blank to co-operate and instead of 'winning' had his head chopped off for his pains. For various reasons*** I was going to try and work this into the main post, but that would have ended up becoming a mini-dissertation well outside my comfort zone.

 

***Family legend is that John Bradshaw, the judge who presided over Charles I's trial, was an ancestor of mine, and that his body was 'rescued' and taken to Jamaica by his son to avoid the nasty business of being dug up and disembowelled after death. Given the official record (that John Bradshaw died without children), and the uncertainty over the Jamaica story, I'm taking this with a rather large pinch of salt. But it would be pretty cool if it was true ;-)