Our Gemara on Amud Beis discusses the Talmudic principle of Hamotzi Mechaveiro Alayv Hara’yah, which translates best as, “If you wish to make a legal claim upon someone, the burden of proof is on you.” The Gemara considers the following verse as a source for this principle, which were instructions that Moshe gave to the Council of Elders, and Aharon and Chur before he ascended Mount Sinai (Shemos 24:14):
וְאֶל־הַזְּקֵנִ֤ים אָמַר֙ שְׁבוּ־לָ֣נוּ בָזֶ֔ה עַ֥ד אֲשֶׁר־נָשׁ֖וּב אֲלֵיכֶ֑ם וְהִנֵּ֨ה אַהֲרֹ֤ן וְחוּר֙ עִמָּכֶ֔ם מִי־בַ֥עַל דְּבָרִ֖ים יִגַּ֥שׁ אֲלֵהֶֽם׃
To the elders he had said, “Wait here for us until we return to you. You have Aaron and Hur with you; let anyone who has a legal claim approach them.
The implication of the verse is that the person who has a claim should bring their arguments forward to justify their assertion.
Divrei Shaul (Ki Tissah) asks why the idea of Hamotzi Mechaveiro was established at the time of Moshe’s temporary departure, as the same legal rule should have applied when Moshe was serving as head of the Sanhedrin. He answers that we learned in Rosh Hashana (21b) Moshe was gifted with divine insight and pronounced legal rulings without witnesses or due process. Therefore, the legal functions of burden of proof and submission of evidence were only required in the Sanhedrin that would be formed in Moshe’s absence.
This got me thinking that in essence, this was part of God’s plan. Moshe was almost supernatural, and for Judaism to continue in the long run, it could not be indefinitely led by a holy man who had a direct line to God. The Jewish people needed intellectual and emotional independence to carry the Torah forward, and learn how to ascertain God’s will through interpreting the Torah, and not just revelation. This is why Moshe introduced the Elders to the idea that they must judge via legal process once he no longer was present.
Not coincidentally, when Moshe did not come back from Mount Sinai at the time expected by the Jewish people, they panicked and needed to create an idolatrous go-between. Shemos (32:1):
יַּ֣רְא הָעָ֔ם כִּֽי־בֹשֵׁ֥שׁ מֹשֶׁ֖ה לָרֶ֣דֶת מִן־הָהָ֑ר וַיִּקָּהֵ֨ל הָעָ֜ם עַֽל־אַהֲרֹ֗ן וַיֹּאמְר֤וּ אֵלָיו֙ ק֣וּם ׀ עֲשֵׂה־לָ֣נוּ אֱלֹהִ֗ים אֲשֶׁ֤ר יֵֽלְכוּ֙ לְפָנֵ֔ינוּ כִּי־זֶ֣ה ׀ מֹשֶׁ֣ה הָאִ֗ישׁ אֲשֶׁ֤ר הֶֽעֱלָ֙נוּ֙ מֵאֶ֣רֶץ מִצְרַ֔יִם לֹ֥א יָדַ֖עְנוּ מֶה־הָ֥יָה לֽוֹ׃
[When] the people saw that Moshe was late in coming down from the mountain, they gathered against Aharon, and said to him, “Arise, make us gods that will lead us, for this Moshe, the man who brought us up from the land of Egypt, we do not know what happened to him.”
Related to this Rav Tzaddok (Resisei Layla 24) holds that the Mishkan was instituted in reaction to the sin of the Golden Calf. The Jews needed a tangible object to act as a go-between. However, I would suggest that initially, even before he took leave, Moshe was pushing the Jews toward independence so that the Jews could forge a relationship to Hashem through delving into Torah and using their intellect. He presaged the weakness that led to the Golden Calf, though in the end, he was not able to stop it.
Similarly, some commentaries explain that the reason why we do not know the actual location of Moshe’s gravesite is so he would not be worshiped. (See Abravanel 34:5. Midrash Lekach Tov Devarim 34:6 says something similar; so that they should not erect a Temple on his gravesite.) This also might be part of why Moshe could not enter the promised land. The Jewish people needed a line of demarcation, where they could begin to operate as a nation with a legal and social system, and economy. They could not live in Manna in the Clouds of Glory forever.
Even the Gemara’s reference to the principle of Hamotzi Mechaveyro can be seen as an ironic self-referential allusion to this point. After the Gemara offers a proof text for this principle, it then asks
מַתְקֵיף לַהּ רַב אָשֵׁי: הָא לְמָה לִי קְרָא? סְבָרָא הוּא – דְּכָאֵיב לֵיהּ כְּאֵיבָא, אָזֵיל לְבֵי אָסְיָא!
Rav Ashi objects to this: Why do I need a verse to derive this? It is based on logical reasoning that one who suffers from pain goes to the doctor. Just as here the individual with the problem has the responsibility to resolve it, so too, someone with a claim against another must bring a proof to corroborate his claim.
The Gemara seems to hold that if something is obvious, and could be derived through reasoning, a verse is not necessary. That is exactly the point; even though there is revelation it is legitimate to employ human reasoning as a source to understand God‘s will. One who has a claim, has the burden of proof, and the responsibility to make his argument. We must not be intellectually lazy but delve into the Torah constantly for new insights into spirituality, psychology and society.
Our Gemara on Amud Aleph discusses The status of the calf fetus inside the cow. It is considered to be, at that time, a part of the mother‘s body. Therefore, if the cow Gores and damages are due from the value of the ox itself, the fetus is included in the lien. Although paternity may have halakhic status (see Chulin 80a), a mother’s bond to the fetus is strong by virtue of a literal physical attachment that leaves a psychological imprint, which remains throughout life. Oznayim LaTorah (Emor) uses this idea of unique maternal bond to explain a discrepancy between two different verses:
Vayikra (21:2) grants the Cohen permission to become ritually defiled through contact with a corpse, in order to bury and grieve the death of a close relative:
כִּ֚י אִם־לִשְׁאֵר֔וֹ הַקָּרֹ֖ב אֵלָ֑יו לְאִמּ֣וֹ וּלְאָבִ֔יו וְלִבְנ֥וֹ וּלְבִתּ֖וֹ וּלְאָחִֽיו׃
except for the relatives that are closest to him: his mother, his father, his son, his daughter, and his brother;
In the above verse, the mother is stated first, then the father.
Yet, regarding the Cohen Gadol, who is restricted from even tending to the corpses of his loved ones. the verse (ibid 11) states:
וְעַ֛ל כׇּל־נַפְשֹׁ֥ת מֵ֖ת לֹ֣א יָבֹ֑א לְאָבִ֥יו וּלְאִמּ֖וֹ לֹ֥א יִטַּמָּֽא׃
He shall not go in where there is any dead body; he shall not defile himself even for his father or mother.
Here the order of the verse states the father before the mother. Oznayim LaTorah explains that each iteration of the family hierarchy listed in the verses are reacting to a different concern. In the first verse that is referring to the regular Cohen, the logic that allows him to become ritually impure to tend to his relatives, is one of filial closeness. Therefore, the mother comes first. As we have seen above, she has the strongest bond to the child. However, the second verse, which is referring to the Cohen Gadol, is relating to an opposite relational priority. And that is, since he is on such an elevated spiritual level, his devotion to God comes before family. The concern in this verse is about honor and respect. One might think that, perhaps even the Cohen Gadol would be allowed to tend to his father’s corpse, where the social experience is more of fear and honor, than love (see Kiddushin 30b-31a). Therefore the verse states the father first, to emphasize that the Cohen Gadol may not defile himself even for his father, whom there would be a natural inclination to show honor.
The powerful instinct of the mother child bond must be respected. Commenting on the mitzvah of Shiluach Hakeyn (sending the mother bird away when taking the eggs or chicks) the Rambam (Moreh III:48) says there is no difference between the emotional anguish felt by a mother bird and a human mother, as this is not an intellect dependent matter, but rather an instinct. It is the manner of some men, especially newer fathers, to get frustrated with various ways in which mothers set priorities. A mother may insist that a child is unwell despite three doctors making light of her concerns as those of a nervous, histrionic mother. There are numerous stories where in the end the Mom was right, detecting an unknown medical threat. Or a mother may insist that a particular child needs accommodation, a certain snack, article of clothing, lighter discipline etc. The father may be frustrated because the mother’s concerns seem irrational. This is because they are irrational, in they they are non-rational, and instinct-emotion based. Instincts are like the lights on your car’s dashboard. They represent information, not necessarily analytic deductive thought. Is the engine about to blow up, or does it merely need adjustments to the emission control? That is harder to discern, but the point is, one does not ignore the warning light. First, you take the indicator seriously, and then consider what it might represent and how important it is. So too with instinct and intuition, while one does not obey it blindly, one should never make light of it.
The pnimiyis (inner dimension) of the mitzvah of Shliach Hakeyn might be to respect the mother-child bond, and so to have contempt for it, may be a disruption of the powerful force and obligation of this mitzvah. You might ask, why is there then a mitzvah by a mother bird and not a human mother? The answer is, the Torah needs to discuss the exception and not the obvious. This is the same reason why the verse about placing a stumbling block in front a blind man is not taken literally, but rather understood as a prohibition against giving improper counsel. (The Minchas Chinuch 232:4 even considers that if one actually places a stumbling block in front of a blind man, there may be no violation of this prohibition, as even the simple meaning of the verse is taken metaphorically.) So too, the Torah does not need to make a prohibition or mitzvah to respect a mother’s instinct and anguish; this is obvious. We saw in yesterday’s Psychology of the Daf that the Torah does not need to teach the obvious.
If one is an electrician, one must respect the power of electricity, and how it operates. It is less important for the electrician to understand the atomic principles that dictate why, and more important to know how to work with it safely and harness its power. Human instincts are similar. We humans waste much time trying to fight instinct. We think we can operate well without proper sleep, or that somehow human warmth and physical affection are “only” irrational needs. It is irrelevant whether they are rational or not. It is impossible to function well as a human if the basic instincts are not respected and taken into account.
The Hole Truth About Sin
Our Gemara on Amud Aleph discusses the liability of someone who has a pit dug on his property, even if he did not do or ask for it to be done:
Since this owner of the courtyard should have filled the pit with earth and he did not fill it, he is considered like someone who actually dug the pit.
The idea that one is considered to be an active damager simply by neglecting to repair a hazard has metaphysical implications as well. Shem Mishmuel (5672, Devarim 29) uses this idea to explain a comment of Rashi on a verse in Devarim (29:18):
וְהָיָ֡ה בְּשָׁמְעוֹ֩ אֶת־דִּבְרֵ֨י הָֽאָלָ֜ה הַזֹּ֗את וְהִתְבָּרֵ֨ךְ בִּלְבָב֤וֹ לֵאמֹר֙ שָׁל֣וֹם יִֽהְיֶה־לִּ֔י כִּ֛י בִּשְׁרִר֥וּת לִבִּ֖י אֵלֵ֑ךְ לְמַ֛עַן סְפ֥וֹת הָרָוָ֖ה אֶת־הַצְּמֵאָֽה׃
When he hears the statements of this oath-curse, he will imagine self-blessings, saying, ‘‘Peace will be my lot when I shall follow what my thoughts envision,’’ so that the unintentional may be added to the sinful.
Rashi and Onkelos (ibid) state, this verse teaches us that if one committed a sin at first unintentionally, but morally deteriorated and began sinning intentionally, then he is held liable for the unintentional sin as well.
Shem Mishmuel says this is logical. A sin committed out of lack of knowledge is still negligent in some way, and after all, the sinful act was done. Yet, it is possible to forgive the person if his actions and thoughts demonstrate that he did not want to sin, if he repents promptly. If he continues to sin and even embraces sin, then he cannot excuse himself because he did the action of the sin, and even his intentions do not show regret. This is akin to passively not covering the hole. Even though he did not dig the hole, his neglect is an affirmation of the hole, and he is liable.
The Gemara (Gittin 56b) tells an unusual fate that befell the despotic Roman general Titus, who led the successful campaign to conquer Jerusalem:
God decrease, “Wicked one, son of a wicked one, grandson of Esau the wicked, for you are among his descendants and act just like him, I have a lowly creature in My world and it is called a gnat.
The Gemara interjects: Why is it called a lowly creature? It is called this because it has an entrance for taking in food, but it does not have an exit for excretion.
The Gemara resumes its story about Titus. A gnat came, entered his nostril, and picked at his brain for seven years. Titus suffered greatly from this until one day he passed by the gate of a blacksmith’s shop. The gnat heard the sound of a hammer and was silent and still. Titus said: I see that there is a remedy for my pain. Every day they would bring a blacksmith who hammered before him. He did this for thirty days and it was effective until then. From that point forward, since the gnat became accustomed to the hammering, it became accustomed to it, and once again it began to pick away at Titus’s brain.
It is taught in a baraisa that Rabbi Pineḥas ben Arova said: I was at that time among the noblemen of Rome, and when Titus died they split open his head and found that the gnat had grown to the size of a sparrow weighing two sela.
There are a number of points in this story that hint at greater meaning:
- The gnat picking at Titus’ brain
- The ability to silence the gnat temporarily and its eventual recurrence
- The aspect of the gnat, that “it does not excrete”
- The growth of the gnat into a much larger creature
Let us analyze this story, noting the above story element numbers and corresponding human mental process. The story can be seen as a description of human stubbornness and refusal to take stock and correct. An initial small sin that is ignored will continue to rot and pick at your brain (#1). The sin seems small and insignificant but the more we push them away, though at first we may succeed, (#2) they can come back stronger and with a vengeance (#4). In dream symbolism, excretion often stands for passing and letting go of feelings, thoughts or memories. The gnat cannot excrete (#3), in the archetype, the human process that represses instead of experiencing and respecting the emotion, the result is psychological constipation. This leads to an inability to metabolize, move forward, derive energy and grow.
A similar Midrashic representation of this can be found in regard to the rabbinic interpretation of the scriptural description of the plague of Frogs. The verse (Shemos 8:2) refers to the plague in singular, “The Frog”. While in peshat it is grammatically correct to refer to an entire group of animals in the singular, the Midrash (Rashi ibid. based on Tanna Debei Eliyahu Rabbah 7:1) takes it literally:
“AND THE FROGS (lit. frog) CAME UP — Really there was only one frog, but when they struck at it, it was split into many swarms.
Meaning, the Egyptians chose to deny the reality of God and the plague by hitting the frog. But each time they hit it, the more it multiplied. Similarly, when one tries to repress a thought or emotion, it just bounces back at you twice as strong. Ignore your moral lapses, and they will grow and grow.
What holes do we need to patch up today so we, or others, do not fall into them tomorrow?