Parashat Pinhas - Separation of Powers

BS"D

The news of the world this week has been dominated by the stunning revelation that Presidential advisor Carl Rove, a bona fide Member of the Inner Circle, may have leaked the content of the sixth book in the Harry Potter series to a reporter from Time Magazine. Coming as a close second for Story of the Week was the speculation that George Bush, POTUS (that's "President Of The United States" in Beltway-speak) was seriously considering nominating Lord Voldermort to replace departing Supreme Court Justice Sandra Day O'Connor. "He's really far more centrist than people realize," the POTUS was overheard to say at a recent cocktail party, thus giving rise to the rumor. [Harry Potter trivia note: in France, Lord Voldemort's middle name is Elvis. Hey, I only work here...]

And people wonder why observant Jews don't own television sets...

The Gemara in Sanhedrin discusses capital crimes and the requirements for an execution to be carried out. The most famous portion of the discussion is the statement that a court that actually imposes a death sentence - the sentence being carried out - that court would be known as a "Bloody Court". It is not merely sensibility or morality. Indeed, those who are pleased that Jewish law conforms to their own moral standards should recognize that morality comes from Halachah, and not the reverse. Situations arise constantly in which Midot, good qualities, do not help. We must known the Halacha in order to know how to behave; in order to know what the Torah demands of us.

In an odd twist, the Halacha offers dispensation to a King. A King of Israel may impose the death sentence unilaterally. Not only does the King not require the Sanhedrin to impose the sentence, the King also does not require the legal mechanism required for punishments to be meted out: Warning to the perpetrator of the prohibited nature of the act, and of the consequences; the Perpetrator must commit the act before qualified witnesses; there must be scienter - the mental state of the Perpetrator must be such that it is clear that the act was done purposefully, willfully, and that the perpetrator was fully aware of the prohibited nature of the act and of the consequences. Thus, it is extremely difficult to bring an ironclad case in the best of circumstances. Add to this the fact that, in the Great Sanhedrin, the vote to condemn must not be unanimous - for if it is, the alleged criminal is seen as a person who has no advocate, and everyone, no matter how low or vile, is entitled to an advocate and to the benefit of the doubt. Thus, if the final member of the Sanhedrin to vote to condemn truly believes the accused to be guilty, and deserving of the death penalty - and if that final member, in casting his vote, would make the vote unanimous - he is forbidden to vote to exonerate, thereby ensuring that the death penalty will be imposed. Justice, the Torah tells us, justice we must pursue.

Kings do not have to go through this process. "Off with his head!" cries the monarch. And off goes the head. Yes, Chazal tell us that Kings of Israel are possessed of an innate sense of justice - King David was a completely just man, they say, whose every act was for the sake of Heaven - and Kings must be given the ability to cut the legal Gordian Knot, for the good of society and in the interest of ultimate justice.

Not to compare George Bush to David HaMelech - lehavdil! - but as Governor of Texas, George Bush took the position that he was Making the Tough Decisions. That imposing the death penalty, and making sure it was carried out, was a social benefit that only those who are truly tough can see through to completion. This is a truism. However, it does not follow that all of George Bush's acts are LeShem Shamayim - in the name of heaven. King David slept no more than ninety minutes a night; the rest of the time he studied Torah. I am not sure what it is that keeps George Bush awake nights, but I find it odd that the President who make so much of his identification with Christian causes does not attend church on Sundays. Let us not believe that things that have a characteristic in common are identical. By permitting the exercise of strength, muscle-flexing, saber-rattling, George Bush appears to have been good for Israel. Bravo. Let us not forget, though, that the Christian Right ends up at The Rapture, where the first thing that happens is the Jews are literally vaporized. I just thought I'd mention that.

But I digress...

The Torah's game plan is to install the Kingdom of G-d on Earth. Yet we have seen the Consequences of Creation: that G-d, having set the cosmos in motion, watches as things wobble, diverge from their intended paths, and ultimately spin wildly out of control. The Perfection in G-d's mind does not translate smoothly to the completed work, and so G-d must intervene, intercede, interfere frequently in order to set things right.

G-d will not force the issue. Humans must arrive at the point where we are prepared to make the commitment to a life of Torah. Only then can we work towards establishing G-d's kingship on Earth; only then can we begin the process of making ourselves a Holy People.

Pinhas' act, at the end of last week's Parasha, was an act of spontaneous, yet clearly intentional violence. It was of a higher level of intent than was Moshe's killing of the Egyptian, for example. The text tells us that Pinhas attacked with a spear. The intent was clearly to kill.

In response to Pinhas' act, G-d says that Pinhas' descendants will inherit Aharon's mantle. Yet G-d stops short of stating explicitly that Pinhas himself is to be made Cohen Gadol. We see from the Book of Yehoshua that this is, in fact, what happens. And so there is a conflict, which the Midrash seeks to resolve.

The Midrash states that, when Pinhas thrust his spear through the illicit couple at the end of Parashat Balak, they did not bleed, and they did not die immediately. The Halachic reasons for this are: if they had bled, the blood would have caused Pinhas to become Tamei - ritually impure - which would prevent him from serving as a Cohen. If they had died on the spot, Pinhas would be a murderer, and thus incapable of receiving the office of Cohen Gadol. We recall that this one one of the main stumbling blocks that prevented Moshe from unifying both the temporal and the spiritual leadership of Klal Israel. (The Midrash also tells us that Pinhas lived for about four hundred years, or through the entire historical period of the Judges, only to be killed by Goliath.)

As we observed at Parashat Chukat, the story has now reached its denouement. With the establishment of the Moshe / Abraham parallel in Parashat Chukat, the Torah is using literary markers to tell us that the story of the wanderings, of the development of the Hebrews into Klal Israel is now complete. Ready or not - and we are in very many respects quite obviously not ready - we are about to take possession of the Land. In order for this to happen, we must embrace the ongoing process of self-improvement, of seeking out Torah, of bringing Torah into our lives. Of giving ourselves over to Torah. In order to accomplish this as a society, we need mechanisms whereby we can help each other out. "Kol Israel 'arevim ze el ze" - All Israel are guarantors for one another - this requires a separation of powers. If all authority is concentrated in one or two figureheads, then there is no personal responsibility. No personal responsibility also means no communal responsibility. G-d recognizes that there must be separation of powers, there must be spheres of containment, as well as crossover spheres of influence.

At the beginning of this vast enterprise, Adam blamed Chava and G-d for the Fruit; Chava blamed the Serpent; the Serpent had no one else to blame, so G-d - perhaps unjustly - punished the Serpent along with Adam and Chava.

Cain kills his brother, and when G-d asks What have you done? - Cain's response is: I never realized I was supposed to protect him.

Never again, says G-d. Never again will humans be able to say they did not recognize the moral consequences of their actions. G-d plants Torah in our world; G-d creates an entire nation whose sole duty is to practice Torah openly, for all the world to see, so the nations of the world understand the fundamentals of morality, of justice, of proper dealings, of Karma, of reward and punishment. And in order for that nation to function properly, there must be a separation of powers.

Consider the opposition of Church / State. If they are combined in one individual, there is no balance. Who can argue with a Supreme Leader? By definition, that one person embodies everything. And woe to the nation who has a Supreme Leader! Chazal tell us of the moral perfection of King David. Nonetheless, David's perfection arises from his unstinting efforts to learn Torah, and from his open willingness to accept rebuke, both from Prophets and from common citizens. [See, for example, the episode of Shim'i ben-Gera' (Shmuel II, 16:5 ff.); see the episode of the Woman of Tekoa' (Shmuel II, 14:4 ff.).]

More than the State needs the Church to counter it, the Church needs a counterweight. States are based on temporal rulers. Kings and queens, presidents and prime ministers, legislators, cabinet ministers, Supereme Court Justices - they are voted out of office, or die, or retire, or go mad... And the spiritual authority of the Church stands over against them setting boundaries to their behavior.

The Church... That's another story. For religions are deemed to be founded on eternal principles, and religious rules do not evolve along with the greater society. So that, in modern America, the Jewish community still has difficulty accepting the notions of women as Halachic authorities - forget the title "Rabbi" - the Orthodox world still actively supports the legal abuse of women's rights by permitting the proliferation of Agunot (women who are not legally divorced because their husbands withhold the Get) - the Reform, Reconstructionist and Conservative actively support divisiveness within Klal Israel by insisting that Orthodox standards for conversion are not valid, thus giving rise to generations of children who will not be legitimately married within Klal Israel. The list goes on...

While many of these problems will continue, because of normal human stubbornness, there remains the possibility, within a society that has checks and balances, of progress. Achingly slow progress, to be sure, but it is still a possibility. It is, to quote Winston Churchill's assessment of democracy, the worst system in the world - except for all the other systems in the world.

Pinhas, the imperfect, is elevated to the status of Cohen. Moshe deputizes his not-yet-perfected amanuensis Yehoshua to become the next leader of Klal Israel. And we prepare to launch into a destiny for which we are still unprepared today, more than three thousand years later.

Speaking of social evolution... How do Tzelophechad's daughters win the right to their own inheritance, and why is it given to them?

The simple answer is: they were the only ones who asked.

O do we believe that Tzelophechad was the only man in Klal Israel to die without sons? What happened to all the other women whose fathers died? They married, and their fathers' possessions passed into their husbands' families. But these five women - so important that each one's name is given twice within this Parasha - did not choose to bring husbands into their lives. Or perhaps they chose to have husbands, but only on an equal footing. If a man without property is a nobody, how much moreso a woman! And so they approach Moshe and make what probably appeared to him to be a reasonable request.

There are some opinions that hold Moshe actually did not know the answer, and so he went to G-d. This is Rashi's Pshat on the matter. Others believe that Moshe knew, but wanted to give G-d the respect of making a pronouncement.

Perhaps Moshe knew perfectly well what the right answer was. But he also realized that he would have a very hard time selling it to the people. He needed it to come from G-d directly, so there would be no arguing. A second advantage is: if G-d stipulates that Tzelophechad's daughters inherit, the Moshe could approach G-d and claim the inheritance of his leadership for his own sons, just as Aharon's sons received the Kehuna.

This latter argument falls apart when G-d selects Pinhas - who was not a Cohen at the time, because he was born too late - and settles the Kehuna on his descendents.

Now, on the brink of our entry into the Land - on the eve of our truly becoming a Nation - personal qualities are emerging as being at least as important as birth. Temporal considerations must be weighed alongside eternal ones. There is a growing separation of powers.

For example, overlooked in the discussion of Tzelophechad's daughters is the fact that they may well be taking on much more than mere title to a piece of real estate. They demand an 'Achuza - a possession, which is a Hebrew word which the Torah applies to possession within the Land of Israel by Jews - within the context of the census. The census, ordered by G-d at 26:2, is limited to men fit for military service. Kol yetze tzava be-Israel - all who go out to the Legion of Israel. Are Tzelophechad's daughters offering to perform military service in return for their full enfranchisement? It is not fanciful to imagine that this is, in fact, the case. They may well be the fore-mothers of the women who have fought and died in the IDF over the decades.

Finally, the Parasha wraps up with an extended list of animal sacrifices, listed in the order of: daily, Shabbat, Rosh Chodesh, Pesach, Shavuot, Rosh HaShana, Kippur, Succot, Atzeret. This catalogue of the holidays focuses exclusively on animal sacrifices. Two of the holidays in the list - Shavuot and Succot - are explicitly associated with fruits and vegetable. Shavuot is the Chag HaBikkuirim - Festival of the First Fruits, and Succot is the festival of the Pri 'Etz hadar - the fruit of the beautiful tree. Why does this Parasha exclude from the list all mention of anything that grows from the ground?

The original offering brought to G-d was an offering of fruits and vegetables. It was brought by Cain, and did not take much notice of it. The first offering to be acceptable to G-d was the copycat offering of Abel, the offering from the flocks. When Cain said "What about my offering?" G-d's response was: "You'll have to pull up your socks and do better next time." So much for parenting skills...

The transformation of Klal Israel, the creation of a freestanding nation, is accomplished partly by one Jew killing another - by Pinhas thrusting his spear through Zimri ben Salu. The apologetics of the Midrash notwithstanding, it is clearly an act of murder. It may be excused as a Crime of Passion, as the justifiable act of a Zealot - as a precedent for permitting the King to circumvent due process and order executions - and how wise of the Torah to allocate that right to the King, and not to the Rabbis! Because temporal excesses can be corrected, whether it is compensation for wrongful taking of life or property, or land for peace, or money payment for damages, pain and suffering. But excesses wrought in the name of The Eternal - who shall combat those!

Finally - and sadly - Moshe receives the word of his impending death. We mention this now because in the coming weeks, as we delve into Sefer Devarim, we shall have to deal with the Midrashic tradition that says Moshe tried to convince G-d to let him live. But it is clear that Moshe's first concern was for his People; that his urgent desire to live longer was motivated by his fear that, without him, the People would founder, would panic and be lost, much as had happened in the past. And so, when G-d announces Moshe's death, Moshe's immediate response is (27:15-17) "Let G-d appoint a man over the congregation; a man who will go out before them and who will come in before them; who will take them out and lead them back in; and let G-d's congregation not be like sheep without a shepherd."

We are truly becoming a Nation like all other nations. We kill each other in arguments over morality. But our ultimate task and destiny is to bring Torah into the world, to live the life - both as individuals and as a nation - that G-d set out for us. Maybe we should not yet try to mingle the animal offerings with the offerings of the fruits of the land. It is probably premature to hope that Cain and Abel can get back together. And so - with all our imperfections, with our terrors and trepidations, with our faint-hearted faithfulness and with our overpowering doubt - forward march into the Promised Land!

Like all nations, Klal Israel needs leaders. Like all human beings, our leaders will make mistakes. Sometimes with the best of intent, and after much reflection; sometimes in haste, or in anger, or in an excess of zeal. If we maintain our balance, we will, G-d willing, be able to stay the treacherous course. Our history shows that we get the leaders we deserve, so it is not sufficient to blame our leaders when things go wrong - not the leaders of the State of Israel; not the leaders of the world Jewish community; not the rabbis of our synagogues, the teachers in our childrens' schools, the heads of our yeshivas - each one of us has the right, the ability, the obligation to make this world better. If Torah stands for nothing else, it stands for that!

And if we are very fortunate, our leaders will always stand for something - for their own leadership, if nothing else. As the leaders of the IDF have always bravely exhorted their troops - taking their cue from our first and greatest leader, Moshe himself: "After me!"

Yours for a better world.