Ki Teitsei (Midrash)

Are Mitzvot for the Birds? (Yahrzeit Shiur)

In loving memory of my father, William Chipman (Avigdor ben ha-Rav Simhah Eliyahu), who departed this world on 10 Elul 5744 (6 September 1984).

Pardon the flippancy, but I couldn’t resist the double-entendre—and, as we shall see later, it is also a serious question. This week’s Torah portion contains a potpourri of a wide variety of mitzvot involving all aspects of life, including the one known as shiluah haken: if one chances upon a bird’s nest while walking along the road, and wishes to take the eggs or chicks, one must first send away the mother bird, presumably to avoid her experiencing the pain of seeing her young being snatched away before her eyes (Deut 22:6-7). Interestingly, this brief and rather marginal passage—and one, I imagine, seldom encountered in real life—is subject to extensive treatment both in the midrash (six of the fourteen in the Midrash Rabbah take it as their starting point) and in the commentators. We shall begin at the beginning, with Deuteronomy Rabbah 6.1 (unlike our usual practice, as there is much material, we shall not quote the midrashim in full). The first part of this midrash discuses the laws of circumcision, stating that the reason we wait until the eighth day to circumcise an infant is so that it will have a certain minimal strength, and not be an absolute newborn still “recovering” from the birth. It then continues:

.And just as the Holy One blessed be He’s mercies are upon man, so are they upon the beast. From whence? As it says, “and from the eighth day on [it shall be accepted as a sacrifice]” [Lev 22:27; i.e., the newborn calf or lamb may not be taken from its mother immediately after birth to be offered as a sacrifice]. And not only that, but the Holy One blessed be He said: “it and its son shall not be slaughtered on the same day” [ibid., v. 28]. And just as the Holy One blessed be He extended His mercy to the beast, so were His mercies upon the birds. From whence? As is said: “when a bird’s nest occurs before you on the road” [Deut 22:6].

To translate our title question into a conceptual one: Are those mitzvot which seem to express compassion for living things, such as birds, in fact enacted for that reason, do they serve another purpose, or are they perhaps totally arbitrary? The answer of this midrash seems clearcut: God, the Creator of All, of the entire cosmic order—man, beast, bird, fish, insect, down to the smallest gnat and worm—in fact extends His love to all these. The proof: the Torah contains various mitzvot which reflect compassion and sensitivity to the mother instincts even of these dumb creatures.

This is in striking contrast to a Talmudic discussion, based on the mishnah in Berakhot 5.3:

He who says: “Your mercies extend to the bird’s nest”; “May Your name be remembered for the good”; [or] “We thank You, we thank You,” is to be silenced.

This mishnah refers to a prayer leader who uses certain improper phrases in his prayer. One must remember that in ancient times the synagogue liturgy had not yet been crystallized, and certainly not yet written in a set form, as it is today; the shaliah tzibbur, the “representative of the congregation” who recited the prayers aloud, was only guided by a rough outline of the blessings that made up the Amidah, the central public Prayer. These three phrases are seen as symptomatic of various types of heresy, or improper belief; not only are they not to be recited but, at least according to some views, even the individual saying them is disqualified from serving as prayer leader. The Talmud on this passage (Berakhot 33b) discusses why:

One can understand [why one may not say] Modim Modim, because it is as if he recognizes two dominions [in heaven]; and “for good may Your name be mentioned,” because it implies that [we thank Him] for the good and not for the evil. And Our Rabbis have taught, “One is obligated to bless over the bad just as one blesses over the good” [m. Berakhot 9.5]. But for what a reason [may one not say] “Your mercies extend to the bird’s nest”? Two amoraim from the West [i.e., the Land of Israel], namely, Rabbi Yossi bar Abin and Rabbi Yossi bar Zebada, disagreed about this. One said, because he casts jealousy among the creatures; and the other said, because he makes the qualities [middot; or mitzvot, “commandments”: the latter reading is implied by Rashi, and is plausible in terms of orthography] of the Holy One blessed be He to be mercy, and they are naught but edicts.

The first answer, “because he casts jealousy among the creatures,” is that this prayer implies that God somehow shows preference to the birds above other parts of His creation. This answer is not elaborated, and need not concern us further.

That one that passed [before the ark] in the presence of Rabbah, and said [in his prayer]: You had mercy upon the bird’s nest, have mercy and pity upon us. Rabbah said: How well does that young man of the Rabbis know to beseech His Maker! Abbaye said to him: Have not [our Rabbis] taught that one is to silence him?! Rabbah [did so] in order to sharpen Abbaye’s wits [i.e., it was meant ironically or provocatively].

The second answer is diametrically opposed to the midrash just quoted, and places a strong emphasis on Divine authority: on the idea that all mitzvot are ultimately hukim, Divine edicts, and may not be viewed as expressing what we would construe as humane or humanistic values. Like the Creator Himself, so to speak, the Torah is utterly transcendent and beyond human comprehension. “My thoughts are not your thoughts, nor are My ways your ways” [Isa 55:8]. In this view, it is forbidden to attribute any particular reason, such as Divine compassion, to any particular mitzvah. The mitzvot must be performed because they represent the Divine Will: Period. “Ours is not to reason why, ours is but to do or die.” Or even a stance not too far distant from the Medieval Christian “Credo qua absurdum est”—“I believe because it is absurd.” Indeed, Rashi on this passage quotes the same phrase as he uses in Parshat Hukkat (Num 19:2), that the hukkim are those things for which “Satan and the nations of the world” ridicule the Jewish religion. As I discussed this issue at some length in HY I: Hukkat, I will not repeat it here in detail. I will suffice with recalling Rambam’s approach to this as presented at the end of Sefer ha-Avodah (Hilkhot Me’ilah 8.8): namely, that our observance of the mitzvot may not be made dependent upon our understanding the reason for them; nevertheless, all of the mitzvot do in fact have a reason, and it is not only permissible, but desirable that a person attempt to understand them, each one according to his own ability. But more on this below.

A second theological “loop” relating to shiluah haken deals with the issue of the reward for fulfillment of the mitzvot. Deuteronomy Rabbah 6.2:

This is what Scripture said: “The path of life do not weigh; its ways wander, and know it not” [Prov 5:6]… Rabbi Abba bar Kahana said: the Holy One blessed be He said, You should not sit and weigh the commandments of the Torah, as is said: “and he weighs in a scale the mountains” [Isa 40:12; this verse is cited simply to explain the meaning of the Hebrew word peles in the previous verse]. Do not say: Since this mitzvah is an important one, I shall do it, because its reward is great. And since that mitzvah is insignificant, I shall not do it. What did the Holy One blessed be He do? He did not reveal to people the reward of each mitzvah, so that they might perform all the mitzvot in innocence [or, “in good faith”; tom].

The reference to “in innocence” means, in contrast to doing the mitzvot in order to receive a reward (as in Antignos’s well-known dictum in Avot 1.3); that is, the ideal is to perform the mitzvot without any ulterior motive, out of love of God. An experimental psychologist would say: this world is set up as a double-blind test. No one knows what God’s rules are, so people have no option but to take all the mitzvot seriously and to do them all as best they can.

The midrash continues with a parable about a king who hired workers to do various jobs in his garden, deliberately refraining from telling them how much money each one will get, so that all of the tasks will be done properly. It then continues:

Thus, the Holy One blessed be He did not reveal the reward of the mitzvot, except for two mitzvot: the weightiest of all, and the lightest of all. Regarding honoring ones father and mother, which is the weightiest one, its reward is length of days, as is said, “Honor your father and mother […] that your days may be long” [Exod 20:12]. And the lightest of all, which is the sending away of the bird, what is its reward? Length of days, as is said “You shall surely send away the mother… and your days shall be long” [Deut 22:7]. This is: “When you chance upon a bird’s nest…”

The presentation here is straightforward and matter-of-fact, without any hint of the problematics involved in the issue of Divine recompense. These are raised, quoting the same verses about length of days, in a rather interesting Talmudic sugya concerning the reward for the mitzvah. Kiddushin 39b:

Mishnah. Whoever does one mitzvah, good is done to him, and his days are lengthened, and he inherits the earth. And whoever does not do one mitzvah, good is not done to him, and his days are not made long, and he does not inherit the earth.

The mishnah seems to present a simple, this-worldly picture of direct reward and punishment for the mitzvah, much like that presented in most places in the Bible. The first part of the discussion in the gemara focuses on the phrase “one mitzvah,” offering various suggestions for its interpretation. It then turns to make the statement that all of the above is based on the (non-biblical) assumption, that recompense for a person’s behavior is not in fact in this world, but in the World to Come:

… This is according to Rabbi Yaakov, who said that “there is no reward for the mitzvot in this world.” For they taught in a baraita: Rabbi Yaakov said, There is no mitzvah written in the entire Torah, whose reward is recorded alongside it, where the resurrection of the dead is not dependent upon it. Concerning honoring one’s father and mother, it is written: “that you may enjoy length of days, and that it be well with you” [Deut 5:16]. Concerning the sending away of the bird, it is written: “that it may be well with you, and that you may enjoy length of days” [Deut 22:7].

Rabbi Yaakov’s basic argument, perhaps inelegantly phrased that “the resurrection of the dead is dependent upon it,” is that the only coherent way of understanding such verses as these is that they refer to some form of life after death, as he explains through the following story:

Behold, one whose father told him to go up to the tower and to bring him chicks, and he sent away the mother bird and took the nestlings, and on his return he fell and died. Where are his good days, and where is his length of days?! Rather, “that it may be well with you”—in the world that is altogether good; “and that you may enjoy length of days”—in the world that is altogether long.

It’s not clear whether this story actually happened, or whether it was a hypothetical case constructed to make the obvious point that “bad things happen to good people.” In any event, it could have happened. Various alternative explanations are entertained by the gemara: that things never actually happened this way—but R. Yaakov claims to have been an eyewitness to this incident; perhaps the person was guilty of evil thoughts—but God does not hold people accountable for their thoughts; or perhaps the thoughts were of idolatry, in which case thoughts are taken seriously. There is also a discussion of this in light of the notion that those going to perform a mitzvah are not harmed; the possibility is also raised that perhaps the ladder was unsafe, and Divine protection does not extend to patently unsafe situations. The interesting part, to my mind, is the conclusion, where it mentions that this selfsame situation was the cause of Elisha ben Abuyah, the one time sage turned arch-heretic of Talmudic tradition (later known as Aheir, “the Other”), leaving the path of religion:

Rav Yosef said: If only Aheir had expounded that verse in the same way as Rabbi Yaakov bar Bartha, he would not have sinned. And what happened to Aheir? There are those who say, he saw a thing such as this, and there are those who say: He saw the tongue of Hutzpit the Meturgamen being dragged through the street by a pig. He said, Shall the mouth that spewed forth pearls shall lick the dust? So he went and sinned.

Whether it was the son being killed in the very midst of performing a mitzvah for which we are assured long life, or the sight of one of the saintly, learned martyrs of the Hadrianic persecution not only being killed, but his body being desecrated in the most disgraceful way, the core problem that vexed Elisha ben Abuyah was that of theodicy: that is, the justification of God‘s ways in the world, and the irresolvable contradiction between the claims of faith that this is a just world, and the harsh reality of the righteous undergoing excruciating suffering. For our present purposes, we shall leave aside the substantive issue, the merits of the various theological solutions, and the exacerbation of the dilemma in our own age by the Holocaust, etc. Experience seems to show that these issues, more than any other, are the cause of many people losing their faith. Intensely personal questions—the loss of a child; the premature death of a love one; sudden, unnatural death by accident or terrorism; painful illness, suffering, and disabilities; the question “Why me and mine?” and “How could God do this to me?”—seem to be those which must often lead to a person abandoning or at least strongly questioning his ancestral faith. Abstract, universal solutions, whether of a philosophical or mystical coloration, seem to provide succor to only a small minority; for most people, even in our sophisticated “post-modern” age, the immediate existential questions remain utmost.

Rabbi Yaakov’s innovation (was he really the first one to postulate such a fundamental idea?) was in postponing or moving the fulfillment of God’s justice to the Next World—to an Afterlife, to the Eschaton, perhaps to the time of the resurrection of the dead. Rav Yosef says that if Aheir (or any other person troubled by this problem) would have known this doctrine, he never would have turned heretic, but could have continued to believe in God, in His providence and justice, and in His Torah. From the perspective of the 21st century, such a view somehow seems naive.

We now turn from the midrashim and other Rabbinic material to the classic medieval commentators. Ramban, in particular, makes these verses the occasion for a lengthy philosophical discussion on the issue of the rationale for the mitzvot. His discussion consist of two parts. In the first part, he summarizes Maimonides’ approach, as found in Guide for the Perplexed III.48. The Rambam states there quite categorically and simply, that the view that there is no reason for the mitzvot but that they are pure expressions of Divine will, is one of two schools. The other school of thought, to which he adheres, claims that they do have rationales, and that all of them are intended for the societal benefit and ethical refinement of the human being.

Ramban then presents his own view, which is related but similar. He explains that those who says that there is no “rationale”—that the mitzvot are “not compassion, but edicts”—do not mean that they are arbitrary, but that God derives no benefit from the mitzvot, but rather they are designed to train human beings in the proper path. Their aim is didactic, to “purify the creatures.” Thus, shiluah haken is not intended to benefit the bird, as part of God’s creation, or as some species with whose welfare God is especially concerned, but rather to implant, or reinforce, the characteristic of mercy and compassion within the human heart. A subtle, but important distinction. (He also harmonizes all of the different Rabbinic dicta into one integrated picture, unlike Maimonides, who frankly acknowledges the existence of differing, even conflicting, schools of thought within Judaism.)

The Ramban concludes with a nice Kabbalistic “plum,” based upon Sefer Habahir §§104-105. “Send away the mother”—i.e., the Divine attribute of Binah, known as “Mother,” which is beyond the understanding of human beings. “And the son”—i.e., the seven lower sefirot, symbolized by the days of Sukkot or the days of the week, “you may take to yourselves.” That is, even in the esoteric teachings of the Kabbalah, there is a clearcut demarcation between those realms of Divinity in Itself that lie beyond our ken, and the seven lower Sefirot, the symbols of Divine emanation and interaction with the world, which are a proper and legitimate concern for human study and speculation (thus Recanati).

Can we draw any general conclusions from this survey of midrashim whose only common denominator seems to be their relation to the obligation to send away the mother bird? These passages place in sharp relief an ongoing debate within Judaism concerning the appropriate balance between a more authoritarian and a more rationalistic approach to the mitzvot; between fideism and what might be called religious humanism; between a naive belief in Divine justice, and a willingness to examine the hard questions about theodicy.

At root, these are all aspects of the old debate between reason and religion. Does faith mean that one must, so to speak, leave ones mind in the cloak room when you enter the synagogue, surrendering completely to the emotional experience of faith and granting blind obedience to the authority of the Torah and its spokesmen, or is one permitted to exercise ones human capabilities and critical faculties, both intellectual and moral, in an active interplay with the words of the Torah and the teachings of the tradition? In brief, are human-guided values at all valid in a religious setting? There are many voices today within the religious world that posit a sharp dichotomy between fallible human values and the eternal truths of Torah. The late Prof. Yeshayahu Leibowitz (whose yahrzeit also falls this week, one day after my father’s), although very much at home and deeply involved in the secular world, drew a sharp demarcation between human values and religion, which he defines as concerned exclusively with the service of God (he constantly invoked the paradigm of the Akedah). Similar voices are, of course, ubiquitous in positions emanating from the official Orthodox and Ultra-Orthodox world.

Some might even take this position to the extreme of saying that such considerations as lifnim mishurat hadin, i.e., going beyond the letter of the law (which we touched upon, albeit not by name, in last week’s discussion of justice and righteousness) or kevod haberi’ot (human dignity) are somehow alien, illegitimate concepts in a pan-halakhic framework, except where the Sages of old already explicitly invoked them. Rav Kook, of course, presented the opposite position: he constantly spoke of integration and harmonization of Torah with the best fruits of the human spirit. If our interpretation of Torah is incompatible with the highest, deepest longings of the human soul, he held, this is a sure sign that something is out of kilter.

An essay on this subject by Rav Aharon Lichtenstein, written nearly a quarter century ago, places the high road of Judaism squarely within the tradition of religious humanism. In his Renaissance-like balance and breadth of vision, he serves as a much needed corrective to Leibowitz. He describes Judaism as equally distant from secular humanism, in which man is the measure of all things, and from the medieval ethic of asceticism and renunciation, which sees man only in his creatureliness. To the contrary, religion—man’s creation in the image of God—serves as the very source of human dignity and value, allowing for his creativity and freedom. The halakhist sees this world as the primary arena for human activity; human welfare and community are among its central concerns. But, unlike the secular humanist, man does not in principle enjoy moral autonomy; life, responsibly lived, requires moral and religious decisions, but the source of the values which guide those decisions are not those of his own reason, but ultimately that of Torah.

* * * * *

I wish to conclude with a few remarks about my father, in whose honor this essay was written. The issues discussed here—the role of both reason and humanism within a religious weltanschauung—relate to central concerns in his own life. I am deeply indebted to him for the emphasis on reason, on the careful and thorough exercise of the intellect, which have remained important themes in my own life. He was likewise a man of deep sympathy for the downtrodden, and of passionate concern for social change—again, the role of compassion, of humane feeling as motifs within Torah, are important issues in the above discussion.

Possibly his outstanding characteristic was a certain modesty, if not a basic shyness and reticence. But this did not mean that there were not things in which he believed passionately, to which he was deeply committed, and in whose sake he acted. In his youth, like many of his generation, he was deeply influenced by the spirit of science and of philosophical rationalism. He often spoke of the influence of Prof. Morris Raphael Cohen, with whom he studied at City College, as a major influence on his development. He grew up in an age of optimism, of belief that human reason could solve most of mankind’s problems.

Together with that, he was passionately committed to radical social change. As part of the generation that lived through the Great Depression, he was disappointed in the American dream. Having come into man’s estate during the decade of the ‘30’s, he was not among those who bought into American dream of individual success as the be-all and end-all of life. He was also very cognizant of the presence of anti-Semitism in America, whether the virulent strain of a Father Coughlin, or the polite, hypocritical anti-Semitism of the WASP and Irish establishment in the New York City school system. He became a socialist: he worked to build a strong Teacher’s Union, and was involved in the third party campaign of Henry Wallace in 1948—a commitment for which he paid a heavy price in terms of blocking his career. Among his cultural icons, alongside the mathematical and scientific figures of Bertrand Russell and Albert Einstein and the rational philosopher Morris Raphael Cohen, were Paul Robeson, who combined his musical genius and unforgettable voice with a commitment to the struggle for social justice for all.

Dad underwent a great change in the early ‘50s’. A combination of factors—the atmosphere of political terror and inquisition created by McCarthy; the creation of the State of Israel; and the fortuitous visit to America in 1954 of a halutz, Zev Silberman of Kibbutz Ginegar, brother of our next-door neighbor in Queens, which led to a life-long friendship and catalyzed a dormant curiosity about Zionism—all catalyzed a lengthy process of return to Judaism and Zionism that culminated in my parents’ aliyah to Israel upon my father’s retirement in 1973.

During this same period my parents bought and rebuilt a summer home in rural Vermont. I remember my father spending long summer days in back-breaking physical labor, working on various aspects of this project. His love of the outdoors, which was such a contrast to our life in the city, somehow suited his quiet, inward- turned nature. He was also an avid reader: from the ‘50’s on, he began studying Hebrew, he and my mother participating in weekly classes at the Histadrut Ivrit of Manhattan, and he diligently reading the American Hebrew weekly Hadoar; in later years, he undertook several formidable reading projects, mostly in Jewish history and related areas.

After the Kaddish year for his mother in 1964, he began to return to religious practice which, like most of his generation, he had rejected in his youth. In conversations with my brother David, we have sometimes discussed the question of his world-view. Do what extent was his return sentimental, based on memories of childhood, and to what extent did it represent a change in his world-view and the adoption of a religious belief system? And how did all this relate to his ongoing belief in the centrality of science and reason? None of us can know the soul of another person, even of ones closest relative; hence, these questions must remain unanswered.