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Parshat VayakhelThe first mitzva in this week’s parsha (actually the only mitzva) is the prohibition of starting a fire (havara in Hebrew) on Shabbat. The question raised by this prohibition is why do we need it? In the previous parshiyot of Yitro and Mishpatim we were told not do any labor on Shabbat, so why is starting a fire singled out? There are three explanations: (1) The prohibition of havara teaches that performing even one of the thirty-nine Shabbat prohibitions is a desecration of the Shabbat. It is generally known that there are thirty-nine categories of “work” prohibited on Shabbat. A person might think that he is not liable for chillul Shabbat unless he performed all thirty-nine violations. So the Torah singled out havara to teach that even performing one of the thirty-nine forbidden labors is considered a violation of the Shabbat. This is the opinion of Rabbi Natan, masechet Shabbat, page 70a. (2) The prohibition of havara is singled out because it has a singular leniency. Whereas the punishment for desecrating the Shabbat is death, the punishment for lighting a fire on Shabbat is malkot. This is the opinion of Rabbi Yose in masechet Shabbat. (3) The Mekhilta ( an ancient Halachic work of Tannaitic origin ) records the opinion of a student of Rabbi Yishmael. This student (whose name is not recorded) learned a new law from this singling out of havara. Burning is one of the forms of execution at the disposal of beit din. Rabbi Yishmael’s student learned from this pasuk that criminals are not to be executed on Shabbat. There was in the nineteenth century a famous gaon known as the Malbim. The Malbim had a phenomenal grasp of the Torah literature. He took it upon himself to write a commentary to the early works of the Tannaim to point out what nuances of language led a particular Tanna to derive a certain law from a particular verse. In our case the Malbim says the crucial words are b’chol moshvoteichem. “Moshvoteichem” means “your dwelling places” so what is added by the word b’chol (which means “in all”)? The Malbim says that “in all” emphasizes even in the places where your courts gather to meet ( and not just in your residential dwellings) no fires may be lit (see also the gemara, Sanhedrin 35b). The halacha accepts the opinion of the Rabbi Natan and the opinion of the student of Rabbi Yishmael. A person is considered to have desecrated the Shabbat if he only does one of the thirty-nine m’lachot (see the Rambam, Shabbat, 7:7). Likewise, our courts do not carry out punishments on Shabbat (Rambam, Shabbat 24:7).
It is worth pointing out that while the Mekhilta says that we do not
carry out executions on Shabbat, the Rambam says that we don’t carry out any
judicial punishments on Shabbat.
The Sefer Hachinuch explains that the rationale behind the mitzva is
that the shabbat is Hashem’s special day for His people. On Hashem’s
special day all the people are invited to participate, even the convicted
criminals. Therefore the courts don’t punish on Shabbat.
The Rambam counts the law of Rabbi Yishmael’s student as a separate
prohibition in Sefer Hamitzvot. The 320th
law in the Rambam’s list is the prohibition of violating the
Shabbat. The 322nd
prohibition is the law of Rabbi Yishmael’s student. There is a good question to be asked here. Since it is forbidden to light a fire on Shabbat, why do we need a separate prohibition to teach us not to execute people on Shabbat via havara ? The great Avnei Nezer zt”l addresses this question in his teshuva (Orach Chaim, 228). The Avnei Nezer’s teshuvot are remarkable tapestries. He weaves together ideas from all over the literature to explain his ideas. It takes a lot of patience to sudy his longer teshuvot but at the end the reader truly feels that he was enlightened by the Rebbe zt’l. A very nice web-site devoted to the Avnei Nezer can be found at www.jewishgen.org/yizkor/sochaczew/so056.html The Avnei Nezer answers the question like this. There is a rule that on Shabbat a person is only guilty if he performs the labor for a positive outcome. An example is the prohibition of carrying. If a person carries a ball outside his into the street in order to play, then he has violated the prohibition of removing an object from his house into the street. But, let’s say there is a dead mouse in his kitchen and he carries it out of his house. The person does not necessarily want the dead mouse in the street. He just wants it out of his house. The mlacha was not done for a positive purpose- it was done to rid himself of something undesirable. This is not a violation of Torah law (though it is forbidden m’drabanan). The Gemara refers to this rule as the rule of mlacha she’eina tzricha l’gufa. The Avnei Nezer, citing the the Ba’al HaMa’or says that executing criminals may be viewed as a mlacha she’eeina tzricha l’gufa. Society is obligated to do away with sinners. The execution , apparently is not the end in itself so its performance should not be forbidden by the usual rules of Shabbat observance. Therefore the prohibition of executing criminals indeed warrants its own particular prohibition. The actual teshuva of the Avnei Nezer is much longer than this brief synopsis. The teshuva explores other issues pertaining to beit din and Shabbat. Anyone who has access to an Avnei Nezer is well advised to look at this teshuva to see how Torah should be studied and taught. |
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