“Hotel California” Parashat Nitzavim 5779

On the last day of his life, Moses gathers the Jewish People [Devarim 29:9] and tells them, “You are standing this day, all of you, before G-d, your tribal heads, your elders and your officials, all the men of Israel.” The purpose of this assembly is clarified two verses later [Devarim 29:11]: “…to enter into the covenant G-d, which G-d is entering with you this day”. Before he passes on, Moses wants to ensure that his people will continue down the path that he has blazed for them. The terms of the covenant are clear: If the Jewish People keep G-d’s commandments, they will be rewarded and if they do not, they will be punished.”

There is something missing here. Usually, when two sides enter an agreement, there is some kind of positive act of acceptance that is required. Sometimes, it is a signature. Sometimes, verbal affirmation is sufficient. In New York City’s Diamond District, sales are consummated with a hand-shake[1]. When the Jewish People entered an earlier covenant at Mount Sinai, they accepted the covenant by reciting those famous words [Shemot 24:7] “All that G-d has spoken we will faithfully do (na’aseh v’nishma)[2]” But here? Silence.

This question was asked by Samuel David Luzzatto, known by his acronym “ShaDaL”, a scholar and a poet who lived in Padua in the nineteenth century[3]. He answers that the mere fact that everyone was “standing before G-d” meant that they accepted the conditions of the covenant. ShaDaL is touching on a fascinating phenomenon called the “Default Effect”. Let’s define the “default option” as the option obtained if a person accepts what he is offered. For example, to prevent someone else from breaking into your iPhone, Apple has included an option that will automatically erase all user data after eight consecutive unsuccessful login attempts. To activate this option, a person must enter the Settings application and set the “Erase Data” toggle to “On”. The default value for this toggle is “Off”. Activation of the “Erase Data” option requires positive action from the user. This is called “opting in”. If the default value of the “Erase Data” toggle was “On” and the user did not want his phone to erase all data after eight failed logins, he would have to actively “opt out”.

Scientists have discovered some very interesting things about default options. It turns out that humans will overwhelmingly choose the default value rather than opting to change it. For example, the Effective Consent Rate for organ donation in Sweden in 2013 was 85.9%. Yet, just two miles away on the other side of the Kattegat Strait in Denmark, the Effective Consent Rate was 4.25%. Are the Danes and the Swedes that different? Why do the vast majority of Swedes tend to donate their organs while most Danes do not? Scientists believe that the answer has to do with the fact that in Denmark the default option is that a person does not donate his organs and in order to do so, he must actively opt in. The result is a low rate of organ donation. In Sweden, on the other hand, a the default option is that a person donates his organs and in order to change this, he must actively opt out. The result is a high rate of organ donation. Returning to the covenant of Parashat Nitzavim, G-d set the default option as “Accept the Covenant”. ShaDaL suggests that as long as you were present when the covenant was revealed, you were automatically in, no further action required.

Or so I had thought. A few verses later, the Torah completes the list of the people who will be entering into the covenant [Devarim 29:14]: “Both with those who are standing here with us this day before G-d and with those who are not with us here this day.” Most of the medieval commenters assert that this verse is referring to the unborn, meaning that they, too, are bound by the terms of the covenant. ShaDaL vociferously disagrees. He believes that the verse is referring to those who were alive at the time that the covenant was made but were not physically present at the assembly. Even though these people had actively opted out – in Israel, we call this “Voting with your feet” – they were still bound by the covenant, just like those who opted in by default. It seems like ShaDaL is contradicting himself. If being present means automatic acceptance of the covenant, then walking away should correspond to a refusal to enter that covenant. On the other hand, if a person can’t opt out of the covenant, then it isn’t really a covenant, is it?

We preface our answer to these questions with a quote from the Carliner Rebbe regarding man’s covenantal relationship with the Divine. The Carliner was asked about how it is possible to philosophically explain why sometimes innocent bystanders are punished for crimes they did not commit. He answered, “There are no innocent victims. If you live on this planet you’re guilty. Period.” The Eagles [Hotel California 1:1] said it even more succinctly: “You can check out any time you like but you may never leave.” The Jewish People had no choice whether or not to accept the covenant of Parashat Nitzavim[4]. The “Accept the Covenant” toggle had only one option: “Yes”. But if this is so, why is ShaDaL so concerned with the method in which the Jewish People accepted the terms of the covenant? It seems completely and entirely irrelevant. No matter what they did or did not do, they were in.

On Israel Independence Day, 1956, Rabbi J.B. Soloveichik delivered a public address at Yeshiva University entitled: “Kol Dodi Dofek; The Voice of My Beloved Knocks”. In this speech, Rabbi Soloveichik presents his philosophy of Modern Zionism. But in the words of Rabbi Shalom Carmy, “Kol Dodi Dofek is much more than a Zionist speech. It formulates a fundamental outlook on the nature of history and Jewish peoplehood”. Kol Dodi Dofek defines two separate covenants that the Jewish People have entered: the Covenant of Fate (Brit Goral) and the Covenant of Destiny (Brit Ye’ud). The Covenant of Fate describes the common suffering, isolation, and alienation shared by the Jewish People: “The individual is subject and subjugated against his will to the national fate/existence, and it is impossible for him to avoid it and be absorbed into a different reality”. All Jews are subject to the same national fate. Pharaoh, Hadrian, the Crusaders, and Hitler did not distinguish between the rich and the poor, the Ashkenazic and the Sephardic, the religious and the secular.

The Covenant of Destiny is completely different. According to Rabbi Jonathan Sacks[5], “This [covenant] defines the people Israel not as the object of persecution but the subject of a unique vocation, to become ‘a kingdom of priests and a holy nation.’ Under this covenant, the Jewish people are defined not by what others do to it, but by the task it has undertaken, the role it has chosen to play in history… Our task as a people of destiny is to bear witness to the presence of G-d – through the way we lead our lives  and the path we chart as a people across the centuries”. In the Covenant of Destiny, the Jew is an active subject while in the Covenant of Fate, the Jew is a passive object.

Rabbi Soloveichik teaches that we cannot choose one covenant over the other. Both the Covenant of Fate and the Covenant of Destiny have been irreversibly foisted upon us. But because the Covenant of Destiny requires positive action, we do have a choice to make: G-d has clearly defined our mission in this world. We can either run from it kicking and screaming or we can embrace it. ShaDaL teaches that our default position is to accept the challenge, to proudly carry the flag and to try to imbue the world with holiness, to “light the candle and to show them the way”.

Shabbat Shalom and Shana Tova,

Ari Sacher, Moreshet, 5779

Please daven for a Refu’a Shelema for Yechiel ben Shprintza.

[1] I still remember the first time we ate at a Kosher restaurant in NYC. My father paid with a credit card and he was surprised that the owner did not ask him for ID. When he mentioned this to the owner, the owner told him, “You trust my kashrut, I trust your credit card”.

[2] This is the JPS translation found of the Sefaria web site. The more accepted translation, found on the Chabad Tanach site, reads “we will do and we will hear”

[3] Interesting Factoid: In none of the pictures of ShaDaL I have seen does he wear a kipa.

[4] The covenant at Sinai was no different. The Talmud in Tractate Shabbat [88b] teaches that G-d took Mount Sinai and held it over their heads, telling them “If you accept the Torah, great, and if you do not, you will be buried here”. Again, the Jewish People had no choice in the matter.

[5] https://www.jewishpress.com/judaism/jewish-columns/rabbi-lord-jonathan-sacks/the-covenants-of-fate-and-destiny/2015/06/04/