Parashiot Netzavim-VaYelech: Justifying Transgressions Past and Present by Yaakov Bieler

Someone who thinks that he is above the consequences of non-compliance with the Tora.

Devarim 29:18 depicts the inner rationalizations of an individual who refuses to be swept along by the Jewish people’s collective acceptance of the terms of the Divine Covenant, outlined in Parashiot Ki Tavo and Nitzavim (27:1-29:28). “And it comes to pass, when he hears the words of this curse, that VeHitbarech (he blesses himself) in his heart, saying, ‘I shall have peace, though I walk in the stubbornness of my heart,’ to add drunkenness to thirst.”

The passing of the Generation of the Exodus from the scene did not necessarily mean that all transgressors among the Jewish people were eliminated.

It is intriguing to consider that non-conforming individuals are to be found among the Jewish people even after the forty long years of wandering in the desert, designed to eliminate the Generation of the Exodus. One might have concluded from God’s Decree in BaMidbar 14:21-23, that all those whose faith was weak, who had tried God’s Patience again and again, would die during the course of the people’s wanderings. To now be told by the Tora that there were still doubters and deniers after all of these trials and miracles—granted that the Tora in Devarim 29:17 ff. is speaking in the singular, suggesting that this was the exception rather than the rule—is at first surprising, but not altogether unexpected. While the generation of the Exodus might have had problems that ultimately resulted in its being precluded from en masse entering Israel, that does not mean that the younger generation that did enter the land, was perfect with respect to its religious beliefs, even during the period of leadership by Yehoshua. Just as Achan (Yehoshua 7:1 ff.) violated a cardinal religious principle by taking spoils from Yericho after the fall of the city, ultimately costing him his life  in addition to those who fell at the battle of Ai (Yehoshua 7:5), so too others could well have engaged in questionable religious and moral practices and harbored heretical theological beliefs, as reflected here in Devarim 29:18.[1]

According to the Tora, what specific form does the rebellion of these individuals take?

But the Tora in Parashat Nitzavim is not simply stating that there will be those who are not impressed by the ritual ceremony and warnings that constituted the renewal of the Divine Covenant at Arvot Moav; it also suggests the specific manner in which these individuals justify and rationalize their opposition. The root of the verb in Devarim 29:18 chosen to describe the mode of cognitive activity in which the dissenter engages is “Beit-Reish-Chaf “or “Barech” (bless)—used in the reflexive form “VehitBaReCh”. At first glance, such a term strikes the reader as the height of irony since in the midst of the numerous and ominous threatened curses that have been directed at the people,[2] all that this person can think of is his own personal blessing. But when one notes that the verb rarely appears in the Bible in the “Hitpael” (reflexive) form   (“VeHitbarech”—lit. “and he blesses himself”),[3] one realizes that the Tora has perfectly captured the mindset of a resolute and unrepentant sinner upon being confronted with the dire consequences that are threatened to result from his sins. Not only does he deny that any harm will come to him as a consequence of continuing transgression; he convinces himself that the Covenant will ultimately prove to be beneficial to his malfeasance!

Assuming that this individual is rational and sane, how can he reach such a counter-intuitive conclusion?

Rabbeinu Bachaye, on Devarim 29:18, suggests that this individual bases his confidence in managing to live both a blessed and sinful life simultaneously, upon a statistical calculation. The commentator maintains that this person believes (wishful thinking? magical thinking?)[4] that the overwhelming majority of Jews will adhere to the laws that they are now being asked to ratify. Consequently, as long as he remains attached to the larger community, the benefits that will be bestowed upon the “Rov” (majority) will inevitably be available to him as well. This would appear to be an extension and application of the position evidenced by God in His Negotiations with both Avraham regarding the destruction of Sodom and Amora (Beraishit 18:17-32) and Yona concerning the fate of Ninveh (Yona 4:6-11). If God is Willing to spare these extremely corrupt metropolises either as long as ten righteous people can be found, or they undergo some form of nominal, external repentance, then it is reasonable to assume that evil will not befall the Jewish people, particularly if it is maintained that most will strive to serve God devotedly and without reservation. While every individual is desirous of receiving the attention of others and to be taken seriously by the group with whom he identifies, , he can also become  quite adept at belittling some personal choices as trivial or “under the radar”, thereby creating license for non-compliance and deviation from religious and moral norms. Consequently, it could be said that according to this interpretation, the specific flaw in this person’s Jewish belief, is the manner in which he understands “Hashgacha Peratit” (personal supervision by God or an individual’s affairs). Does God only Deal with the collective, thereby allowing individuals to slip between the cracks—the righteous being caught up in the punishment of the wicked, and the sinner  benefiting from the rewards bestowed upon the general community—or do individuals receive specific interventions in terms of their choices and actions, independent of everyone else? Parashat Netzavim’s representation of the mindset of this sinner in Devarim 29:19-20 appears to underscore the latter assumption.[5]

An alternative explanation based upon a technicality vis-à-vis the acceptance process of the new covenant.

RaMBaN attributes a more technical strategy on the part of the sinner in 29:18, i.e., that when the people as a whole were asked to acknowledge that they accepted the Covenant,[6] this person remained silent, thereby thinking that he had successfully excluded himself from undertaking the commitment and potentially suffering any consequences. According to Sephorno, he might have been even more devious and publicly accepted the terms of the agreement verbally, while in his/her heart resolutely nullifying all that he had said.[7] On the one hand, considering RaMBaN’s train of thought, while not saying something when it is called for, could indicate opposition,[8] Jewish law also invokes at times the principle, “Shtika KeHoda’ah Dami” (silence is equivalent to agreement).[9] To prove something based upon silence is dubious at best, and therefore it is probable that this individual’s duplicity will go undetected by his fellow Jews. It is precisely this type of situation to which the phrase in Devarim 29:28, “Hidden things are God’s Responsibility to deal with…” refers, and indeed 29:19-20 clearly indicates that in such a case the “Beit Din Shel Ma’ala” (the Heavenly Court) will have to prosecute the offender, rather than the “Beit Din Shel Mata” (the this-worldly court).[10]

Sephorno’s scenario calls to mind a different Halachic principle, i.e., the need for everyone to strive to achieve the characteristic of “Tocho KiBoro” (one’s internal state of mind and belief being consistent with any external impressions that s/he makes via speech, actions, social involvements, etc.)[11] Although the Talmud seems to apply such a standard specifically to scholars—see Yoma 72b where we are instructed that scholars who do not meet this criteria, i.e., they give the impression that they are students of the Tora, but internally lack the fear of God, either are not to be accorded the honor normally accorded their scholarly status, or, even worse, they are to be despised, since they not only do not embody a living “Kiddush HaShem” (a sanctification of God’s Name) but actually constitute a “Chilul HaShem” (a profanation of God’s Name)— all of us should nevertheless aspire to such consistency.[12] Whether the achievement of “Tocho KeBoro” is an expectation for the scholar who has mastered his studies, or a prerequisite for entering into the world of Tora study in the first place, lies at the heart of the comment in Berachot 28a, when it is reported that as a result of Rabban Gamliel’s being deposed as “Nasi” (lit. prince; in this case, head of the Great Sanhedrin, the supreme court) due to his ill-treatment of R. Yehoshua, hundreds of additional students entered the “Beit Midrash” (the house of study). The Talmud notes that R. Gamliel had previously excluded them because he did not feel that they displayed “Tocho KeBoro” qualities. But perhaps such qualities are precisely what one can more fully achieve specifically as the result of Tora study? By this influx of students, Rabban Gamliel was given much food for thought regarding his intolerance for his fellow man, including R. Yehoshua.

A third interpretation that posits that the sins justified by this transgressor reside exclusively within his heart and have no external manifestation.

The most subtle rationale of the religiously non-conformist Jew described in Devarim 29:18, is presented by Keli Yakar. The commentator notes the emphasis upon the word “Lev” (heart) in the phrases “VeHitbarech BiLEVAVO” (and he blesses himself in his HEART), “BeShrirut LIBI Eilech” (in accordance with the willfulness of my HEART I will go) as well as in 29:17 “…Asher LEVAVO Poneh HaYom MeiIm HaShem Elokeinu” (whose HEART turns aside today from following the Lord, our God). Based upon this emphasis, Keli Yakar contends that this individual is only a sinner within his heart, as opposed to one who engages in non-sanctioned external behavior. Ironically, when he hears the language of the Covenant, he concludes that his clandestine idolatrous beliefs fall within acceptable parameters, i.e., that his point of view is acceptable to God, and consequently Blessed. Since the prohibition against idolatry that makes up the terms of the Covenant in Devarim 27-29 emphasizes the material aspects of these alien beliefs, i.e., (Devarim 27:15) “Cursed is the individual who MAKES an idol or a molten image…”, the sinner draws two fallacious conclusions: a) there is nothing objectionable about worshipping in one’s heart idols that non-Jews have made, and b) as long as such worship is confined exclusively to internal belief, as opposed to sacrificing or engaging in any other ritualistic devotions before or using idolatrous objects of devotion, he is not guilty of transgression.[13] There is a certain internal consistency regarding the casuistry of this individual’s thought processes. He could argue that while external conformity and consistency is demanded for the community as a whole, what an individual harbors in his heart is the purview of none other than that person himself. Parashat Netzavim’s harsh treatment of such a position, according to Keli Yakar, demonstrates that if he were interested in arriving at the true intent of the laws of the Tora in general, and those of the Covenant in particular, by means of consulting with those who are truly knowledgeable and carefully reading previous formulations of the laws against engaging in idolatry, the error of his conclusions would have been quickly and categorically pointed out.

Applying these attitudes to Jews today who are not formally asked to endorse a new covenant.

It might be relatively easy for a contemporary Jew to distance himself in one way or another from taking seriously the warnings and threats recorded in the Tora directed at those unwilling to live lives in accordance with the dictates of the Commandments[14] —on the one hand, some may be unsure of the literalness of the curses that are being threatened; others may simply never have learned or been taught Bible and Jewish law and therefore fail to comply due to a lack of knowledge of Jewish primary and secondary sources. But it is more difficult to imagine how the Jews living at the time when the contents of Devarim transpired, who at this point in the Tora narrative have been deliberately assembled (Devarim 29:9-11) to listen to and acknowledge Moshe’s review of the Mitzvot as well as the Divine Covenant, could fail to be caught up in the collective fervor of religious commitment and devotion. Strikingly, classical commentaries offer a series of deep psychological insights into the mentality of the contrarians standing at Arvot Moav (BaMidbar 36:13), who refused to sincerely accept upon themselves a life of Mitzva performance. Just as these strategies, i.e., thinking that what one does will not be noticed by God, that since one never formally stood either at Sinai or Arvot Moav and verbally agreed to be bound by Covenants with God, he can pick and choose which Mitzvot to do and how to do them, and whatever one thinks and believes is not subject to review and criticism, are justifications which shed light on religious deviations thousands of years ago, they also help us understand instances of current religious malfeasance.  Human nature has not changed over time, and although we may not find ourselves standing among hundreds of thousands of our fellow-Jews listening to Moshe Rabbeinu’s oration,[15] the strategies of self-justification and rationalization attributed to this much earlier period, are unfortunately likely to be extremely relevant today, as well as in the years to come.

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[1] An intriguing Talmudic passage whose subtext suggests that even if an individual has acted properly up to a certain point, it cannot be relied upon for the person to maintain that particular path, is the following:

Berachot 28b-29a

Our Rabbis taught: Simeon ha-Pakuli  arranged the eighteen benedictions in order before Rabban Gamaliel in Yabneh. Said Rabban Gamaliel to the Sages: Can anyone among you frame a benediction relating to the Minim? Samuel the Lesser arose and composed it. The next year he forgot it and he tried for two or three hours to recall it, and they did not remove him. Why did they not remove him seeing that Rab Judah has said in the name of Rab: If a reader made a mistake in any of the other benedictions, they do not remove him, but if in the benediction of the Minim, he is removed, because we suspect him of being a Min? — Samuel the Lesser is different, because he composed it. But is there not a fear that he may have recanted? — Abaye said: We have a tradition that a good man does not become bad. But does he not? It is not written, But when the righteous turneth away from his righteousness and committeth iniquity? — Such a man was originally wicked, but one who was originally righteous does not do so. But is that so? Have we not learnt: Believe not in thyself until the day of thy death? For lo, Johanan the High Priest officiated as High Priest for eighty years and in the end he became a Min? Abaye said: Yochanan is the same as Yannai. Raba said: Yochanan and Jannai are different; Yannai was originally wicked and Yochanan was originally righteous. On Abaye’s view there is no difficulty, but on Raba’s view there is a difficulty? — Raba can reply: For one who was originally righteous it is also possible to become a renegade. If that is the case, why did they not remove him? — Samuel the Lesser is different, because he had already commenced to say it [the benediction]. For Rab Yehudah said in the name of Rab — or as some say. R.Yehoshua b. Levi: This applies only if he has not commenced to say it, but if he has commenced, he is allowed to finish.

[2] The fact that Devarim 27:12 mentions that the Levi’im were going to both BLESS and curse the people as part of the Covenant, and yet the Tora chooses to explicitly detail only the curses rather than the blessings to which the people expressed agreement (27:15-26), suggests that both in terms of quantity as well quality, the curses are considerably more memorable (as well as significant?) than the blessings. Devarim 28:1-14 mentions a number of blessings, but once again they are far and away outweighed by the curses that follow (28:15-68!)

[3] Aside from Devarim 29:18, the only other instances in TaNaCh where this root and verb form appear are: Beraishit 22:18; 26:4; Yeshayahu 65:16; Yirmiyahu 4:2; and Tehillim 72:17.

[4] The manner in which the level of religious observance of the Jews is described in virtually all of the Prophets suggests that the opposite was the case, i.e., that the majority of Jews did not live up to Tora standards. In Nedarim 22b, R. Ada b’R. Chanina states that had the Jews as a people not sinned, the entire Jewish canon would have consisted or no more than 6 books—the Five Books of Moses and Yehoshua, the latter being needed to ascertain the boundaries of the land of Israel. The Prophets and their writings were necessitated by the very state of affairs that the individual in Devarim 29:18 refuses to acknowledge, i.e., that most of the Jews did not comply with the Tora’s directives. Furthermore, the people’s ongoing sinfulness is fully anticipated by Moshe, as indicated in Parashat Ha’azinu (Devarim 32:1-43). However, it is interesting to note that at the end of Yehoshua (24:31), the Biblical text appears to go out of its way to stress that as long as Yehoshua and his contemporaries, who were first-hand witnesses to God’s Miracles, remained alive, the people as a whole did worship HaShem properly. This idea is reiterated in Shoftim 2:7. References to the sinfulness of the people begin only in 2:11, preceded by 2:10 in which is described the rise of a generation that knew “neither the Lord nor the work that He had Done on Israel’s behalf.”

[5] It is possible that while God may Allow other transgressions to pass unnoticed, idolatry (LaAvod Et Elohei HaGoyim HaHeim) will never be tolerated on any level. Such an approach is indicated by the sin of idolatry being defined to include even mere improper thoughts, based upon Yechezkel 14:5.

[6] In Devarim 27:11-26, not only are blessings and curses publicly pronounced by the Levi’im, but they are also affirmed by “all” the people when they answer “Amen” to each statement. “Amen” is Rabinically interpreted to signify “it is true”. (See Kitzur Shulchan Aruch, 6:8.) Although Halachically, even were one to merely listen to, but fail to say “Amen”, to a blessing that he is obligated to recite, it is nevertheless considered sufficient for  fulfilling the Commandment, it is self-evident that the explicit pronouncing of “Amen” constitutes a much clearer agreement and personal connection to what the bless-er has stated. See Mishna Berura on Orach Chayim 8, #15.

[7] A second Halachic manifestation of Sephorno’s depiction of how this individual is approaching the verbal commitment that he has ostensibly made, but in fact from which he is distancing himself, is the issue of the extent to which “Kavana” (intent) plays a role in the fulfillment of Commandments and the recitation of blessings.  According to Mishna Berura, Orach Chayim 60 #9, while if one has “neutral Kavana”, i.e., he is neither thinking positively and reflectively about the performance of the Mitzva nor thinking negatively about either deliberately not fulfilling the commandment, or something completely other than the Mitzva,  he aposteori is considered to have minimally fulfilled his obligation, this is not the case when he deliberately thinks that he does not wish to fulfill an obligation by what he is saying or doing. A case where an individual is even advised to deliberately not fulfill his obligation at a time when others are doing so, is for example if a person wishes to recite Havdala on behalf of his family when he returns home after Saturday evening services, and he also hears Havdala recited in shul.  Since once he has fulfilled his Mitzva, if others who have not yet fulfilled their obligation wish to perform the Mitzva, they ideally are supposed to perform the Mitzva for themselves, rather than having someone else be “Motzee” (exempt them from their obligation) them, in order to avoid such a scenario, it is best to deliberately have in mind not to be “Yotzeh” (fulfill one’s own Commandment) in the synagogue. See Shmirat Shabbat KeHilchata, Part II, Chapt. 60, #12.

[8] Responding “Amen” to a “Beracha” is thought by RaMBaM to have major significance:

(Responsa of RaMBaM #256) Whomever hears a Beracha, is obligated to respond Amen, even though s/he is not obligated to recite that blessing, and has already fulfilled his/her obligation in this case, because s/he is adding to praising, glorifying, exalting to the Honored and Awesome Name by doing this, for one should not be present when His Name is mentioned without adding to it praise, or an acknowledgement to the person who has exalted Him.

Consequently, the converse, i.e., failing to respond Amen to a Beracha would suggest that one does not wish to add his/her praise, or even more problematically, disagrees with what was originally stated.

[9] E.g., Yevamot 87b; Bava Metzia 37b.

[10] A Talmudic referent for cases that will have to be adjudicated by the Heavenly court is the following:

Bava Kamma 55b-56a

It was taught: R. Yehoshua said: There are four acts for which the offender is exempt from the judgments of Man but liable to the judgments of Heaven. They are these: To break down a fence in front of a neighbour’s animal [so that it gets out and does damage]; to bend over a neighbour’s standing corn in front of a fire; to hire false witnesses to give evidence; and to know of evidence in favour of another and not to testify on his behalf…

But are there no more cases [of the same category]? Is there not the case of a man who does work with the Water of Purification or with the [Red] Heifer of Purification, where he is similarly exempt according to the judgments of Man but liable according to the judgments of Heaven? Again, is there not the case of one who placed deadly poison before the animal of a neighbour, where he is exempt from the judgments of Man but liable according to the judgments of Heaven? So also is there not the case of one who entrusts fire to a deaf-mute, an idiot or a minor [and damage results], where he is exempt from the judgments of Man but liable according to the judgments of Heaven? Again, is there not the case of the man who gives his fellow a fright, where he is similarly exempt from the judgments of Man but liable according to the judgments of Heaven? And finally is there not the case of the man who, when his pitcher has broken on public ground, does not remove the potsherds, who, when his camel falls does not raise it, where R. Meir indeed makes him liable for any damage resulting therefrom, but the Sages hold that he is exempt from the judgments of Man though liable according to the judgments of Heaven? — Yes, there are surely many more cases [to come under the same category], but these four cases were particularly necessary to be stated by him, as otherwise you might have thought that even according to the judgments of Heaven there should not be any liability. It was therefore indicated to us [that this is not so]…

[11] Aldous Huxley apparently was quite skeptical whether achieving such a level is possible for even the holiest of individuals: (“Wordsworth in the Tropics”, 1929) “Too much consistency is as bad for the mind as for the body. Consistency is contrary to nature, contrary to life. The only completely consistent people are the dead.” It would appear that Halachic Judaism sets a higher level of expectation in this regard.

[12] In Chapter 5 of Mishneh Tora, Hilchot De’ot, RaMBaM lists a number of behaviors by which scholars are expected to abide. While the margin of error for scholars is far narrower than for others, it would be wrong to conclude that all others are exempted from striving to achieve these standards as well. R. Aharon Lichtenstein, with regard to RaMBaM’s emphasis upon the importance of trying to fulfill the principle of practicing “LiFnim MiShurat HaDin” (beyond the letter of the law), has referred to RaMBaM’s developing a “culture of aspiration” in which pristine ideals for personal deportment are outlined, reflecting an expectation that people will try to attain them with varying degress of success, rather than their serving as baselines for standard behavior. The same could be said with regard to the issue of consistency.

[13] Such an approach would have to assume that the Covenant at Arvot Moav was superseding previous directives concerning idolatry such as the Ten Commandments. In Shemot 20 as well as Devarim 5, not only is there a restriction against making and overtly worshiping idols (20:4-5; 5:8-9), but also not to “accept”—a seemingly internal  state of affairs—any other gods besides HaShem (20:3; 5:7). But then again, an individual who is engaged in rationalizations will find it easy enough to arrive at intellectual distinctions that will confirm the correctness of the practices that he desires to maintain and justify.

[14] Despite the customs to read the Tora sections of rebuke in VaYikra 26:14-43 and Devarim 23:15-68 quickly and in a low voice, as well as call to the Tora for these Aliyot someone above reproach who would not have to worry that the curses will be fulfilled in connection to him and his family—see Kitzur Shulchan Aruch 78:4—nevertheless, it is safe to say that most people do not seriously contemplate this type of literal Divine Reaction to failure to observe Jewish law, a real possibility.

[15] It is possible to apply the principle enunciated in the Pesach Haggada, i.e., each person on the night of the Seder is to see him/herself as if s/he has just left Egypt, to the presentation of the Covenant at the end of Devarim, namely, that each of us should imagine ourselves standing at that moment, entering into the God’s Covenant. This would appear to be the sense of Devarim 29:13-14. See the section of the discussion in the essay for Parashat Ki Tavo http://text.rcarabbis.org/parashat-ki-tavo-the-torahs-time-warp-by-yaakov-bieler/ where the phrase “Ad HaYom HaZeh” is considered from the point of view of relating to the reader at the moment when he accesses the verse in question.

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