Shlach Lecha

June 11, 2015

In this weeks sedra, the Netziv discusses the frequent phrase Moshe and Aharon. Or as my English teacher used to say “compare and contrast”!
What were their similarities? How were they different? What were their functions?
The Netziv has them sitting together studying Torah in the Beis Hamedrash when the people arrive to ask a question.

“Those who found him gathering wood brought him to Moshe and Aharon…”

What were they thinking? With all due respect to Aharon, did anyone believe that if Moshe could not provide an answer, that Aharon would? Note how they are ordered in the pasuk, with Moshe listed first. The plain reading is that they turned to them in sequence.

One approach is given in the Sifri here, and applied by Rashi in a few similar pesukim relating to Pesach Sheni, and the request of Tzelafchad’s daughters. This reading has Moshe and Aharon already sitting together in the beis medrash. They were not approached serially, which would have been pointless after going to Moshe first. Rather, in each case, those who brought the question for a decision happened to find the brothers engrossed in a frequent activity: Torah study. And, we should add, the questions were addressed to both, because in an open, free-wheeling Torah discussion, there is room for greater and lesser authorities joining in on the discussion.

We are really not where we want to be yet. People who would not be able to team up to give testimony – like the brothers Moshe and Aharon – may still sit together to decide difficult matters of halachah. The gemara states this explicitly.

It is perfectly plausible, therefore, to explain in this way some of the other joint references to Moshe and his brother. In those cases, they were asked to rule in the abstract about the halachic definition of some Torah statute. There was plenty of room for both to take part in the deliberations, along with others as well. That was not the case in our pasuk. Here, a person’s life hung in the balance. They were asked to determine whether the accused had committed a crime for which he needed to pay with his life. Two relatives, like Moshe and Aharon, will not count as separate voices. Should a father and son both take part in such a discussion, it is only the father’s vote that counts, while his son is treated as an assistant. Moreover, Rashi on the gemara cites a Tosefta that two relatives should not even sit together in a capital case – possibly to avoid the appearance of impropriety. One of them should get up and leave. If so, we are no closer to a solution than when we began. Why invoke Aharon here, when he was barred from adding substantively to the discussion?

What we have here is a glimpse of a fundamental distinction in deciding halachic matters. Moshe and Aharon could not sit together in a single court – and they did not have to. Each headed a court of his own, each seeking to uncover Torah truth, but using different tools.

Parshas Shoftim instructs us to resolve doubtful halachic matters by going to higher authorities. Somewhat surprisingly, it speaks of going to the kohanim and to the shofet. We understand the reference to the shofet; deciding the law is his job. But why mention kohanim?

Know that there are two ways in which to arrive at an acceptable halachic answer regarding a matter for which no earlier, accepted approach exists. The first is largely rational. The decisor looks at similar cases and comparable models, and arrives at a position that he finds logically compelling. We would call this hora’ah. It is fully legitimate – but may only be relied upon in the instance that the decision is rendered.

A very different method uses the systematized rules of Torah inference to derive new laws from the ground up. When used properly, its conclusions become part of the corpus of law passed down from generation to generation, i.e. mishnah. Applying these rules of inference is no simple matter, and requires much analysis and comprehension of subtlety and nuance. We call those things “pilpul.”

The first method is linked to the kohanim; the second to the shofet. Both can be used, and both are recommended by the pasuk in Shoftim. During the travels of Bnei Yisrael in the wilderness, Aharon headed up a court specializing in the first method, while Moshe was the acknowledged master of the pilpul process.

When the gatherer of wood violated the laws of Shabbos, the community was at a loss as to how to grasp the Torah’s command to execute the Shabbos desecrater. People came to both Moshe and Aharon, ready to accept instruction from either of them, each employing his specialty in consultation with his own court.

Those two institutions remain alive and vital to this very day.

Shabbat shalom

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