The Open and Shut Case of the Sixth "Commandment"

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February 02 2018
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While this week will probably be remembered for different news stories, one news item caught my eye. Congressman Trey Gowdy (R-SC) announced he would not be seeking re-election, favoring instead, to return to his beloved legal vocation. Congressman Gowdy, who was elected to Congress in 2010, was known for his identification with the Tea Party conservative movement and the hearings he chaired about the tragedy in Bengazi. He will certainly be missed by those on his aisle and perhaps even some in the opposition party.


 


What I found interesting was that he seems to prefer to prosecute criminals than to participate in lawmaking in Washington. In the press release about his retirement he stated that he seeks no other elected position and simply wants to return to “the justice system.”


 


We learn from the Aseres Hadibros, the Decalogue mentioned in this week’s parshah, that Jews have an obligation to one another – to social harmony – in addition to responsibilities to God. Our sages suggested that two tablets were needed to impart the lesson that our covenantal relationship with God contains both components between man and God and aspects between the human and his or her fellow human. Enabling justice is one of those critical values that transcends God’s relationship with the Jewish people. Maintaining a just society is the sole affirmative command among the seven Noachide laws for all of humanity. The others are “do nots”; the sole “do” in that list of seven is to protect and affirm the uniqueness of each individual.


 


In addition to the words of the Aseres Hadibros, we learn volumes from the fact that the account is mentioned twice in the Torah, as it is repeated in the book of Devarim, or Mishneh Torah (Deuteronomy) which by definition, means the repetition of Torah. There are differences between the two versions (mostly different word choices or added phrases). Given these different Biblical accounts, Rabbi Yaakov Kamenetzky asked which version can be found on the tablets Moshe brought down months later? The obvious answer would be that one corresponded to the first tablets (which Moshe shattered upon viewing the Golden Calf) and one to the second. But, Rabbi Kamenetzky points out that the Torah explicitly informs us that the text on the second tablets was identical to that on the first ones, as it says, “And the Lord said to Moshe, cut two tablets of stone like the first ones; and I will write upon these tablets the words that were in the first tablets, which you broke (Shmos 34:1).


 


Rabbi Kamenetzky uses a phrase from the Shabbat prayers to answer the question. In the Shacharis Amidah we say:


 


 


"ושני לוחות אבנים הוריד בידו וכתוב בהם שמירת שבת וכן כתוב בתורתיך"


“And he (Moshe) descended with the two tablets in his hand, on which was written the safeguards of Shabbat, as it is written in your Torah”


Perhaps the most well-known distinction between the two versions is the introduction to the fourth statement, the command to observe the Sabbath. In this week’s parsha, we are told to remember (zachor); in Devarim the term safeguard (shamor) is employed. The Talmud (Shavuos 20b) proclaims that both words were uttered simultaneously by God, a feat only God could actually perform. So did the tablets have the word zachor or shamor engraved upon them? Based on the liturgical quote above, Rav Yaakov maintains that the Devarim version was the text that actually appeared on the tablet and that was recited by God.


 


But according to Rabbi Yosef Chaim of Baghdad, author of the Ben Ish Chai, different vowels under one letter in the Aseres Hadibros, also highlights a profound message about our humanity. That is the degree to which we can learn from these verses uttered by God to the Jews (and according to some renderings, the entire world!), specifically the sixth commandment proscribing murder.


 


In our parsha (Shmos 20:13) the Hebrew lo sirtzach has a pasach under the tzadi, so both Ashkenazim and Sephardim would vocalize “tzaahch” like the “a” in “far.” Yet, claims the Ben Ish Chai (in his Talmudic commentary Ben Y’hoyada on Makkos 7a), the word “tzaach” contains a kamatz vowel in the word in Devarim, so it would be read by Sephardim to rhyme with “far” and by Ashkenazim to rhyme with “ball”. What significance can be read into this, asks the Ben Y’hoyada? He answers that the vowel pasach connotes an open sound (the Hebrew root p.t.ch), while kamatz (k.m.tz) means closed.


 


[I read this comment of the Ben Y’hoyada in its original and translated it. But most Chumashim I viewed put a kamatz vowel under the tzadi in D’varim as well. The only version that I found in a very non-exhaustive search that had a kamatz under the word sirtzach was the Koren Tikkun, the book that helps people prepare for reading the Torah. Remember that a Torah scroll has no vowels; the vowels are part of the Oral Tradition. If someone can explain to me why most Chumashim (seemingly) do not agree with the premise of the Ben Ish Chai’s comment, I would greatly appreciate it! -EK] 


 


What does all this mean?


 


The Ben Ish Chai’s comments relate to a very well-known Mishnah in the beginning of Makkos.


 


 


"סנהדרין ההורגת אחד בשבוע נקראת חבלנית. רבי אליעזר בן עזריה אומר אחד לשבעים שנה. רבי טרפון ורבי עקיבא אומרים, אילו היינו בסנהדרין, לא נהרג אדם מעולם. רבן גמליאל אומר אף הן מרבין שופכי דמים בישראל." (מכות ז.)


“A Sanhedrin that executes once in seven years is called a destroyer. Rabbi Eliezer ben Azaria says: even once in seventy years. Rabbi Tarfon and Rabbi Akiva say: had we been on a Sanhedrin at the time when they still performed executions, no person would ever have been executed. Rabban Shimon ben Gamliel says: they too would have increased the number of murders in Israel because they would have eliminated the criminals’ fear of retribution” (Makkos 7a).


Anyone who tells you that Judaism has a simple and unambiguous position on capital punishment has not familiarized themselves with this Mishnah. While Rabbi Akiva and Rabbi Tarfon focus on the judge’s impossible task to sanction an execution as a consequence of pre-meditated murder – playing God if you will – Rabban Gamliel shoots back that society’s innocence is lost without the deterrence of execution. If society cannot scare potential murderers away from committing such a heinous act, more innocent blood will be shed.


Governor Hugh Carey wrote a letter to Rabbi Moshe Feinstein asking the sage’s view of capital punishment. Rav Moshe penned a responsum dated Purim, 1981 and presents both sides of the issue: consequences for commission of the worst crimes possible versus the importance and value of every single life. He spoke of the caliber – both intellectually and righteousness – of the limited group of judges who were authorized to judge capital cases. He then spoke of the high level of evidence needed to convict.


 


Back to the Ben Y’hoyada. His comments on the vowels below the word “murder” mirror the Mishnah above. He continues that the members of the Sanhedrin should not ask too many questions in a capital case; if they do, those words could be the difference between life and death. For this reason lo sirtzach is written with a pasach under the tzadi in the word sirtzach. The kamatz under sirtzach in Va’eschanan refers to closing one’s mouth. We learn from this that sometimes one who opens (pasach) his mouth violates you shall not murder; at times if you close your mouth (kamatz) and do not declare the halacha,  you too can violate lo sirtzach.


 


The Ben Ish Chai then quotes the Gemara (Avodah Zarah 19b) that interprets the following verse: “Rabbi Abba said in the name of Rav Huna, who said in the name of Rav: what is the meaning of that which is written, ‘for many victims has she felled’ (Proverbs 7:26) – this is a Torah student who has not reached the level of maturity to decide the law, and he decides the law nonetheless. ‘And mighty are all she has slain’ (Ibid.) –this is a Torah student who has reached the level of maturity to decide the law, and yet he does not decide the law.”


Justice is a component of truth, the signet ring of God. Prosecuting bad people and ridding society of them is a laudable calling. Defending someone who has been accused falsely also brings justice to the world. Both endeavors can be life-saving, and in the case of Congressman Gowdy, a vocation teeming with meaning. Both our halachic and American systems demand fair justice. Rav Moshe Feinstein seconded this, as did the Ben Ish Chai a century earlier. Even God’s words, according to the Ben Ish Chai, echo this message.


Unfortunately, our society has lost the ability to listen to both sides of an issue. The Talmud often lists dissenting views. We gain by studying both sides, even if the halacha is decided according to one of the opinions and not the other. We are not served by people with pre-conceived conclusions nor with those who refuse to share their wisdom.


In light of this, I find great meaning in the passage we say towards the beginning of our daily prayers (taken from the Talmud Brachos 16b):


May it be Your will, Lord my God and God of my ancestors, to save me today and every day, from the arrogant and from arrogance itself, from a bad man, a bad friend, a bad neighbor, a bad mishap, a destructive adversary, a harsh trial and a harsh opponent, whether or not he is a son of the covenant.


Every vowel under every letter of the Torah is pregnant with meaning. Others have found lessons from the ‘trop’ the musical notes associated with each word. When God revealed Himself to mankind at Sinai, it was not a one-time event. We re-live it every time we study Torah.


May we always continue to find relevance, meaning and inspiration in God’s word. May we look to the interpretations of our great sages for guidance in understanding the greatest literary work known to man.

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According to Ben Y'hoyada, we can learn a great lesson from a difference of vowel between the two versions of the aseres hadibros (note - in many versions of Chumash, there is no distinction). What do we learn about this regarding capital punishment and what lesson are we left with?

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