Two Halachic Highways1
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.
Individual Choice In Avodas Hashem7
You shall not seek out after your heart and after your eyes after which
What the Torah really means to say is that we should not follow the dictates
of our hearts. Strangely, it doesn’t employ the expected verb, but instead
takes us back to the very beginning of our parshah. There , we find the
verb form lasur/ to spy out the land, joining that pasuk to the lo sasuru/
you shall not seek out, of our pasuk.
The Torah hints at something remarkable about individual choice in the way
we live our lives. There is nothing more important to us than how we serve
Hashem. Yet, this is nothing that can be standardized. The general outlines
of avodas Hashem vary from person to person. One person toils constantly in
his Torah learning. Another throws himself into the performance of practical
mitzvos, while yet another tries to maximize his output of chesed. All of
them act in devotion to Heaven.
We see that even within these three broad choices there is much room for
difference. Among those who immerse themselves entirely in their learning,
we still find very different styles of and approaches to that learning. Even
those who devote themselves to rigorous performance of the mitzvos find room
for individual choice. The gemara speaks approvingly of great people
who devote themselves to some mitzvah with great tenacity; the
Yerushalmi sees special bracha accruing to a person who chooses a
single mitzvah which he never compromises, regardless of circumstances.
Were a person to ask how he should choose between the three major options,
and from the choices within each group, we would answer simply: Follow where
your heart leads you. It is certain that even if you cannot articulate to
yourself why you should pick one option over another, your heart will not
fail you. It will take you to the place most suitable to the powers of your
With so much leeway granted to individual choice, we might come to think
that Hashem is interested only in that a person act for the sake of Heaven.
If one’s inclination and fervor orient him to explore new ways of serving
Hashem, that might be fine as well.
It isn’t. And it is for this reason that our pasuk uses a verb that
connotes spying, searching for something previously unknown. Creativity and
individuality have their limits. When they tell a person to seek out new
forms of avodah, they become illegitimate. Choices are available and
desirable within the orbits of Torah study and mitzvah performance – but not
in the creation of new forms of service.
We note that our pasuk is located in the wake of the story of the gatherer
of wood. Tosafos claim that he acted as he did for the sake of Heaven.
He saw a generation demoralized by the sentence imposed upon them of
wandering for forty years. They thought that all their activities had become
irrelevant, as G-d simply did not care any longer what they did. The
wood-gatherer sought to demonstrate that Hashem cared very much. By drawing
a death sentence upon himself for desecrating Shabbos, he hoped to prove
that their mitzvos and sins were still important, even if he had to
sacrifice his life to make his point.
He, too, was “spying out” the landscape, using his individuality to tell
himself that he could serve Hashem by breaking His law. The Torah emphasizes
in our pasuk that a person who acts in such a manner has overstepped his
authority. One cannot transgress for the sake of Heaven. (Although the
gemara states that a transgression for the sake of Heaven is on par
with a mitzvah performed not entirely for the sake of Heaven, this has no
bearing on our discussion. When the gemara creates this identity, it speaks
specifically about a person trapped in a predicament not of his choosing,
and dealing with it through an aveirah with good intentions. It does not
license transgression in other circumstances.)
Similarly, we are barred from creatively inventing new ways of serving G-d,
even when they do not involve transgression. Hashem understands quite well
our need for individuality. He is the One, after all, Who made it part of
us. He also assigned us our individual strengths and talents. And He left
ample room for our individual choices within the great task He gave us at birth.
1. Based on Ha’amek Davar and Harchev Davar, Bamidbar 15:33
2. Bamidbar 9:6
3. Bamidbar 27:20
4. Sanhedrin 36A
5. So in the Cooperman ed. Netziv
6. Devarim 17:8
7. Based on Ha’amek Davar, Bamidbar 15:41
8. Bamidbar 15:41
9. Bamidbar 13:2
10. Shabbos 118B
11. Kiddushin 1:
12. Bava Basra 119B
13. Nazir 23B