Thursday, January 27, 2011

As easy as falling off a ladder, part ii of ii

Summary: Further analyses of the midrash of Divine justice presented by Rashi. If the meidiz was chayiv hereg, why should someone falling on him help, when it is more akin to sekilah?

Post:  As I mentioned in my previous post on this subject, a pasuk in Mishpatim states:
13. But one who did not stalk [him], but God brought [it] about into his hand, I will make a place for you to which he shall flee.
יג. וַאֲשֶׁר לֹא צָדָה וְהָאֱ־לֹהִים אִנָּה לְיָדוֹ וְשַׂמְתִּי לְךָ מָקוֹם אֲשֶׁר יָנוּס שָׁמָּה:
and Rashi writes:

והא-להים אנה לידו: זימן לידו, לשון לא תאונה אליך רעה (תהלים צא י), לא יאונה לצדיק כל און (משלי יב כא), מתאנה הוא לי (מלכים ב' ה ז), מזדמן למצוא לי עילה:
 "but God brought it to his hand" -- and why did this come before him? This is what David said (I Shmuel 24:13) "As saith the proverb of the ancients: Out of the wicked cometh forth wickedness." And the proverb of the ancients is the Torah, which is the proverb of Hashem, who preceded the world. And where did the Torah state "Out of the wicked cometh forth wickedness"? "But God brought it to his hand." In what does the verse speak? Of two people, one who killed by accident and one who killed on purpose, and there were no witnesses to the matter who could testify. This one is then not killed and this one is not exiled. And Hashem appoints them to the same inn. This one who had killed deliberately sits under the ladder, while this one who killed accidentally climbs the ladder, and falls on the one who had killed deliberately and kills him. And witnesses testify on him and render him obligated in exile. Thus, it emerges that the one who killed by accident is exiles and the one who killed deliberately is killed.

והא-להים אנה לידו: ולמה תצא זאת מלפניו, הוא שאמר דוד (שמואל א' כד יג) כאשר יאמר משל הקדמוני מרשעים יצא רשע, ומשל הקדמוני היא התורה, שהיא משל הקב"ה שהוא קדמונו של עולם. והיכן אמרה תורה מרשעים יצא רשע, והא-להים אנה לידו. במה הכתוב מדבר, בשני בני אדם, אחד הרג שוגג ואחד הרג מזיד, ולא היו עדים בדבר שיעידו, זה לא נהרג וזה לא גלה, והקב"ה מזמנן לפונדק אחד, זה שהרג במזיד יושב תחת הסולם, וזה שהרג שוגג עולה בסולם ונופל על זה שהרג במזיד והורגו, ועדים מעידים עליו ומחייבים אותו לגלות, נמצא זה שהרג בשוגג גולה, וזה שהרג במזיד נהרג:

I covered the first of two objections in that post, that Rashi says oleh where halacha and our gemara would seem to insist on yored. See there. But here is a second objection to the details of this Rashi.

This, brought to you courtesy of the Chizkuni.

"Here, Rashi explains that this one who had killed accidentally, etc, -- one needs to say that this one who fell upon his friend was holding a knife and killed him. For if you do not say this, that the death by sword is not fulfilled in him {the meizid}, which he is liable to. And this is specifically when he was descending, for if it was while ascending, he {the shogeg} would not be liable {galus}, which we derive from וַיַּפֵּל עָלָיו. And one would not say that he is {now} liable to two galus-es, for behold, he killed someone who was already {reckoned} dead."

Here is the Taz discussing this idea:

 "and this one who killed deliberately is killed" -- there is a difficulty from that which is stated in Sanhedrin 37b:
תניא א"ר שמעון בן שטח אראה בנחמה אם לא ראיתי אחד שרץ אחר חבירו לחורבה ורצתי אחריו וראיתי סייף בידו ודמו מטפטף והרוג מפרפר ואמרתי לו רשע מי הרגו לזה או אני או אתה אבל מה אעשה שאין דמך מסור בידי שהרי אמרה תורה (דברים יז, ו) על פי שנים עדים יומת המת היודע מחשבות יפרע מאותו האיש שהרג את חבירו אמרו לא זזו משם עד שבא נחש והכישו ומת והאי בר נחש הוא והאמר רב יוסף וכן תני דבי חזקיה מיום שחרב בית המקדש אף על פי שבטלה סנהדרי ארבע מיתות לא בטלו לא בטלו והא בטלו אלא דין ארבע מיתות לא בטלו מי שנתחייב סקילה או נופל מן הגג או חיה דורסתו מי שנתחייב שריפה או נופל בדליקה או נחש מכישו מי שנתחייב הריגה או נמסר למלכות או ליסטין באין עליו מי שנתחייב חנק או טובע בנהר או מת בסרונכי אמרי ההוא חטא אחריתי הוה ביה דאמר מר מי שנתחייב שתי מיתות ב"ד נידון בחמורה:
Or, in English:
It has been taught: R. Simeon b. Shatah said: May I never see comfort6  if I did not see a man pursuing his fellow into a ruin, and when I ran after him and saw him, sword in hand with blood dripping from it, and the murdered man writhing, I exclaimed to him: Wicked man, who slew this man? It is either you or I!7  But what can I do, since thy blood [i.e., life] does not rest in my hands, for it is written in the Torah, At the mouth of two witnesses etc., shall he that is to die be put to death?8  May he who knows one's thoughts exact vengeance from him who slew his fellow! It is related that before they moved from the place a serpent came and bit him [the murderer] so that he died.
But should this man [have died] through a serpent? Did not R. Joseph say, and so too it was taught in the school of Hezekiah: From the day the Temple was destroyed, although the Sanhedrin was abolished, the four modes of execution were not abolished? They were not abolished, [you say,] but surely they were! — But the law of the four modes of execution was not abolished:9  He who is worthy of stoning either falls from the roof,10  or is trampled to death by a wild beast; he who merits burning either falls into the fire or is bitten by a serpent;11  he who is worthy of decapitation is either delivered to the [gentile] Government12  or brigands attack him; he who is worthy of strangulation is either drowned in a river or dies of suffocation?13  — I will tell you: that man was guilty of another crime,14  for a Master said: One who incurs two death penalties imposed by Beth din is executed by the severer.15
If so, this one who killed deliberately, his judgement should be via the sword, so why was he judged with this one falling upon him, which is equivalent of stoning? For this is like casting stones upon him, which is stoning, even without pushing him from a height of two heights, as I mentioned in parashat Yitro on the verse {Shemot 19:13}:

יג  לֹא-תִגַּע בּוֹ יָד, כִּי-סָקוֹל יִסָּקֵל אוֹ-יָרֹה יִיָּרֶה--אִם-בְּהֵמָה אִם-אִישׁ, לֹא יִחְיֶה; בִּמְשֹׁךְ, הַיֹּבֵל, הֵמָּה, יַעֲלוּ בָהָר.13 no hand shall touch him, but he shall surely be stoned, or shot through; whether it be beast or man, it shall not live; when the ram's horn soundeth long, they shall come up to the mount.'

And Chizkuni wrote that in truth it is dealing here in the case that the one who fell on him was holding a knife in his hand and pierced him. Thus, this was like his correct judgement, with a sword. And this has no basis and hint!

And it appears to me to analyze further, why did the "proverb of the ancients" deal with two murderers where their judgement was carried out by way of falling from the ladder? Rather, it is apparent that this, as well, is like the gemara that I mentioned. That just like in that case, that it was not known that this murderer had to him another sin, but we say that so it was, since we see that his death was more stringent that was appropriate to him, which is burning, so too here absolutely in this "proverb of the ancients", that from the actions of these wicked -- that this one fell on this one and the punishment of the one below is greater than what was appropriate to him -- namely, stoning -- perforce 'evil comes out' -- to explain, it becomes clear that there was another wickedness, which is the other sin which is even more stringent. (And now, all is settle, with the aid of heaven.)

Frankly, both the Chizkuni and the Taz are rather far-fetched. Chizkuni, because of the objection that the Taz raised, that there is no hint at all that the fellow was holding a knife, and so the clear and simple implication of the gemara is that the fellow was slain because of the impact of the man falling upon him. The Taz is far-fetched because of the way he is kvetching the gemara. Just as the point of the shogeg falling when there are witnesses was so that the shogeg is punished for the previous sin which was mentioned, so too the point of the meizid being fallen upon and thus slain was as punishment for the sin which the gemara explicitly mentions. Yes, there is a hidden sin, but this hidden sin is one which is revealed to the reader of the parable, so that he should understand it. To posit a second unmentioned sin, which the typical reader would not intuit, except by application of the principle, unmentioned in this gemara, of Rav Yosef and the academy of Chizkiyah, is extremely דוחק, in my estimation.

I will bring up two further points. While it is true that the gemara in Sanhedrin does teich up Shimon ben Shetach's statement in this manner, the parallel Yerushalmi leaves his statement unadorned and unmodified. They leave it, and understand it, kifshuto.

The Yerushami Sanhedrin 23b:
דף כג, ב פרק ד הלכה ט גמרא  כיצד מאומד.  לא תאמרו ראינוהו רודף אחריו וסייף בידו.  נכנס לחורבה אחריו נכנסנו אחריו ומצאנוהו הרוג ראינוהו יוצא והסייף מטפטפת דם.  אמר ר' שמעון בן שטח אראה בנחמה אם לא ראיתי רודף אחר אחד נכנס לחורבה נכנסתי אחריו ומצאתיו הרוג וזה יוצא וסייף מנטף דם אמרתי לו אראה בנחמה שזה הרגו אבל מה אעשה שאין דמך מסור בידי אלא היודע מחשבות יפרע מאותו האיש.  לא הספיק לצאת משם עד שהכישו נחש ומת.  

I would also add the famous Mishna in Avos, about Hillel Hazaken:
אף הוא ראה גלגולת אחת שצפה על פני המים אמר לה על דאטפת אטפוך ומטיפיך יטופון 

Additionally, he (Hillel) saw a skull floating on the surface of the water. He said to it: Because you drowned [another] you were drowned. And the those who drowned you will, in the end, be drowned themselves.
Now, I am not going to take this allegorically, but rather according to its straightforward sense, literally. Someone who drowned another is not liable to drowning. Rather, he would be liable to death by sword. This is the case of meizid, as above. Yet, middah keneged middah kicks in, which is why this happened to him. And so too to those who drowned this fellow. One could give the same forced teretz as the Taz, that there was some undisclosed other sin for which he merited drowning (which corresponds to chenek, strangulation). But this would be at odds with Hillel Hazaken's explicit statement that על דאטפת אטפוך, because you drowned someone, you were drowned.

We now have three Tannaitic statements which don't accord with this statement of Rav Yosef and the academy of Chizkiyah. That we have questions is OK. We are allowed to wonder at how these can be in accord. But that does not mean that one should harmonize them, or that such harmonizations take us closer or more distant to the true intent of the statements.

I would posit one of the following two answers.

(1) There are differing opinions within Chazal, and one shouldn't harmonize them. That is Hillel HaZaken, Shimon ben Shetach, and the author of the present midrash about the allegory maintain that there is Divine justice, but not that it accords with the punishment which would have been meted out by Bet Din. Hillel Hazaken's focus was on punishment via middah keneged middah. In the incident with Shimon ben Shetach, the point was that a murderer doesn't go unpunished, and Hashem has many agents, including this snake. In the incident in the allegory, the point is that the deliberate murderer gets death and the accidental one gets exile, but not specifically that death must accord with what the beis din would mete out.

Rav Yosef's statement is along the same line, that even though there is no beis din around today that can mete out the punishment, don't think that there is no justice nowadays. Hashem steps into this breach. The specific methods illustrate how there still is Someone carrying out the judgment the Sanhedrin would have given, and thus gives examples of deaths roughly according to the four executions of beis din. There is similar motivation, but that does not mean that they would agree. In saying this, I am arguing with the setama di-gemara, which often tries to harmonize statements of Chazal, even where it shouldn't.

(2) If one were to harmonize, one could harmonize in the following manner, again against the setama di-gemara of the Bavli: Rav Yosef was speaking about Hashem stepping into the breach to impose the four methods of execution, where the breach was caused by the abolishment of the Sanhedrin. He was not speaking of general punishment for murderers, etc., where the Sanhedrin would not have convicted the fellow anyway. For example, someone violates Shabbos in private. There is no hasraah, there are no witnesses. Would the Sanhedrin convict and execute him? Obviously not. But Rav Yosef's statement never covered such a case, just the case where were the Sanhedrin around, with power to execute, they would have done so.

The case of Shimon ben Shetach, where there was only circumstantial evidence, this was when the Sanhedrin was still around. They would not have been able to carry out the sentence because of the lack of two witnesses, as Shimon ben Shetach explicitly says. Yet he prayed, and cursed this fellow. Perhaps as a direct result, Hashem sent his agent, a snake, and slew the murderer. But this was for the sin Shimon ben Shetach observed, not for a different, unobserved and unspoken (in the Tosefta, and in the Yerushalmi) sin. This was not taking over for the Sanhedrin, because even the Sanhedrin, which was present, could not have convicted.

So too the case of Hillel Hazakein. This is middah keneged middah, but there is no evidence that any of these drownings were observed by witnesses. So too in the allegory under discussion. There were no witnesses. Yes, the accidental murderer got what was coming to him, but that might be due a cosmic guilt and debt. That does not mean that all has to happen as the Sanhedrin would carry it out, since the Sanhedrin is present but would be unable to convict anyway.

I would prefer the first answer to the second.

To my mind, this has a lot in common with part i of "Falling off a ladder". In both instances, the attempt was to make the midrash accord to certain preconceived notions, and to the details of halacha. And then, a terutz was offered which in fact takes us further from the original intent. It is better to appreciate the midrash on its own, and absorb the underlying message, rather than get caught up in irrelevant details.

No comments:


Blog Widget by LinkWithin