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Devarim (5767) – Counsel for Defence


THERE ARE TIMES WHEN, BENEATH THE SURFACE of an apparently simple interpretation, an intense drama is taking place. So it is with the opening verse of Devarim.

The text seems simple enough. “These are the words Moses spoke to all Israel in the desert east of the Jordan, in the Aravah, opposite Suph, between Paran and Tophel, Lavan, Hazeroth and Di Zahav.” 1 The sages, however, ever sensitive to the slightest nuance, heard something strange and suggestive in these words. What is Di Zahav? Evidently the name of a place. But it has not been mentioned before. How then does it help us locate where the great last speeches of Moses took place, if we have no way of knowing where it was?

Besides which, the name itself is suggestive. Di Zahav means “enough gold.” Might there not be a subtle reference here to an episode which involved gold – namely, the golden calf, the worst sin of the previous generation? On this slender basis, the sages built one of their most daring interpretations:

Moses spoke audaciously towards Heaven . . . The school of R. Jannai learned this from the words Di Zahav. What do these words mean? They said in the school of R. Jannai: Thus spoke Moses before the Holy One, blessed be He: “Sovereign of the Universe, the silver and gold which you showered on Israel until they said, Enough , was what caused them to make the calf . . . R. Hiyya bar Abba said: It is like the case of a man who had a son. He bathed him and anointed him and gave him plenty to eat and drink and hung a purse around his neck and set him down at the door of a house of ill-repute. How could he help sinning? 2

Moses, in this dramatic re-reading, has been transformed into counsel for the defence. Yes, he says to G-d, the people committed a sin. But it was You who gave them the opportunity and the temptation. Without gold, they could not have made the calf. But it was You who told them to ask their neighbours for gold. This was not something they did of their own accord. Therefore you must not blame them. Please, instead, forgive them.

We hear, in this aggadic passage, one of the most striking and humane motifs in rabbinic thought. It is called being melamed zekhut, judging favourably, or arguing the case for the defence. It means placing a positive construction on events, pleading a cause, putting the case for mercy or at least mitigation of sentence. The sages sought to exonerate Israel. Yes, to be sure, judging by appearances, they may have been guilty of waywardness, backsliding and ingratitude. They may at times have failed to live up to the highest ideals of the Torah. Yet consider the difficulties they faced, the dangers they went through, the temptations that surrounded them. Even the making of the golden calf, their greatest sin, was in some measure excusable.

Limmud Zekhut has a rich history in aggadah and halakhah, Jewish thought and law. One of its classic expressions is to be found in Maimonides’ Epistle on Martyrdom, written around 1165. Spain had been invaded by an extremist Muslim sect, the Almohads, who confronted Jews with the choice: convert or die. Maimonides’ own family was forced to flee. Some Jews, however, stayed, publicly embracing Islam while secretly remaining Jews – forerunners of the later marranos who converted to Christianity.

One of the forced converts wrote to a rabbi to ask whether he was right to continue to practice as many mitzvoth as he could in secret. The rabbi wrote back a dismissive reply, saying that now that he had abandoned Judaism, every religious deed he performed was not a merit but a sin. Appalled by this reply, Maimonides wrote the Epistle, saying that indeed Jews should leave Spain and go somewhere they could practice their religion openly. But those who stayed and converted under fear of death should not be regarded as sinners. To the contrary, every mitzvah they do is still a good deed. Indeed, in one sense, it is a great deed since “the reward is much greater for a person who fulfils the Law and knows that if he is caught, he and all he has will perish.” In the course of the letter, Maimonides cites a host of examples in which the sages say that the greatest of the prophets were criticised by G-d when they criticised the Jewish people. His conclusion is that “It is not right to alienate, scorn and hate people who desecrate the Sabbath. It is our duty to befriend them and encourage them to fulfil the commandments.”

It is a note that sounds again during the Hassidic movement, most famously in many stories attributed to the great R. Levi Yitzhak of Berditchev. It is said that Levi Yitzhak once saw a Jew smoking in the street on Shabbat. He said, “My friend, surely you have forgotten that it is Shabbat today.” “No,” said the other, “I know what day it is.” “Then surely you have forgotten that smoking is forbidden on Shabbat.” “No, I know it is forbidden.” “Then surely, you must have been thinking about something else when you lit the cigarette.” “No,” the other replied, “I knew what I was doing.” At this, Levi Yitzhak turned his eyes upward to heaven and said, “Sovereign of the universe, who is like Your people Israel? I give this man every chance, and still he cannot tell a lie!”

The great leaders of Israel were the great defenders of Israel, people who saw the good within the not-yet-good.

Where did they learn it from? From the prophets themselves. Most notable in this regard is a figure not usually associated with good news, namely Jeremiah. His name is associated with a bringer of bad tidings, yet it is he who says in the name of G-d:

I remember the devotion of your youth,
How as a bride you loved Me
And followed Me through the desert,
Through a land not sown. 3

Again, it was Jeremiah who said of Ephraim (the northern kingdom, usually associated with idolatry):

Is not Ephraim my dear son,
The child in whom I delight?
Though I often speak against him,
I still remember him.
Therefore my heart yearns for him;
I have great compassion for him – declares the Lord. 4

There were the great prophecies of hope in the concluding chapters of Isaiah, from which all seven haftarot of “consolation” are taken, beginning next week. Indeed almost every prophet gave voice to hope. The prophets criticised Israel, but always, and only, out of love. Perhaps the most paradoxical of all such utterances came, in the name of G-d, from Amos: “You only have I chosen Wednesday Jul 18 11:30:05 2007 of all the families of the earth; therefore I will punish you for all your sins.” 5 The very suffering of the Jewish people, implied Amos, was a sign of their chosenness, their preciousness in the eyes of G-d.

What then is going on in the sages’ interpretation of the words Di Zahav in the first verse of Devarim? The sedra of Devarim is always read on the Shabbat before Tisha b’Av, the most tragic date in the Jewish calendar, the day on which both the first and second temples were destroyed and on which many other catastrophes occurred, including the defeat of the Bar Kochba rebellion, Hadrian’s rebuilding of Jerusalem as a pagan city, and the Spanish expulsion.

The haftarah (the famous “vision” of the first chapter of Isaiah, which gives its name to this day, Shabbat Chazon) is one of the most searing indictments in all literature of the corruption of a people. Devarim itself is harsh in its judgement of the Israelites. Rashi, in his comment to the first verse, writes that “These are words of rebuke, and is listing the various places where provoked G-d.” The connection between sedra, haftarah and Tisha b’Av is driven home by the unmistakable three-fold occurrence of the word Eichah:

In the sedra: “How can I bear your problems, your burdens and your disputes alone?” 6
In the haftarah: “How the faithful city has become a harlot! She once was full of justice; righteousness used to dwell in her; but now murderers!” 7
In the megillah: “How deserted lies the city, once so full of people. How like a widow is she who once was great among the nations. She who was a queen among the provinces has now become a slave.” 8

These are terrifying judgements, awesome in their cumulative weight. It is not too much to say that had this been all, the Jewish people might have concluded that the mission G-d had given them was impossible. However hard they tried, it seemed, they fell short. They were afflicted; they suffered; twice they had seen their holiest site destroyed. The first time, when they were exiled to Babylon, consolation was at hand. The prophets told them – and they were right – that within seventy years they would return. This time, however, under Rome, no end was in sight. An extraordinary passage in the Talmud tells us how close Jews came to despair:

R. Ishmael ben Elisha said: Since the day that a government has come into power which issues cruel decrees against us and forbids us to enter into the ‘week of the son’ we ought by rights to issue a ruling forbidding Jews to marry and have children, so that the seed of Abraham our father would come to an end of its own accord. 9

It was a moment of crisis. (So, incidentally, was the Spanish expulsion. Abarbanel, who lived through it, later wrote: “I used to say in those days all the prophets who prophesied about my redemption and salvation are false; Moses, may he rest in peace, was false in his utterances, Isaiah lied in his consolations . . . Let the people remember all the despairing things they used to say at the time of the exile.”)

What, at such times, is the role of a sage? The sages were not prophets, but they knew they carried the same responsibility (“From the day the Temple was destroyed, prophecy was taken from the prophets and given to the sages” 10). They knew that at times of comfort and ease, the task of the prophet is to warn of impending dangers, to detect the first signs of moral drift and decadence. But at times of trouble the role of the prophet is to bring hope.

That is what the sages did. Building on the prophets but going beyond them, they were melamed zekhut for the Jewish people. They became advocates for the defence. They spoke the good news about Jews (“Even the emptiest of Israel is as full of good deeds as a pomegranate is of seeds” 11; “Let Israel alone: they may not be prophets, but they are the children of prophets” 12; “they are believers, the children of believers” 13; “A Jew who sins remains a Jew” 14). Throughout the rabbinic and post-rabbinic literature this note sounds time and again – a note of love, of generosity of spirit, even awe for this people who, though much afflicted, never gave up its faith.

And this is what they did on Shabbat Chazon. On this, the most painful Shabbat of the year, they introduced into the first verse of Devarim a note of defence. Yes — Israel sinned, nowhere more so than when they made the golden calf, but even then there was a case to be argued in mitigation – and this, they said, is what Moses did. Don’t blame them, he said to G-d: they were not responsible for the gold, and without the gold there would have been no golden calf. Moses, counsel for the prosecution, becomes Moses, attorney for the defence. Thus the sages introduced a note of hope into what otherwise might have been the Shabbat of despair.

Where is that voice today? We know all too well our failings as a people. Yes, Jews in Israel are a fragmented and deeply divided society. Yes, Jews in the Diaspora are assimilating and disaffiliating. Those who seek to be critical will find no shortage of grounds on which to be so. But Jewish leadership as the sages understood it is about love, respect, even awe for the Jewish people – this extraordinary people who after the Holocaust and the angel of death collectively created the greatest single affirmation of life in the past two thousand years of our history: the State of Israel. This remarkable people who, despite the pressures of modernity and post-modernity, still identify as Jews, come to the aid of other Jews in need wherever they are, who carry beneath the surface of their lives a glowing ember of identity which with the right touch may yet be fanned into flame. This people who, though they may live far from Israel, still carry Israel, the land and its people, in their heart, so that when it is attacked they come to its defence. We have no shortage of internal critics. What we need is the opposite. Who will be melamed zekhut for the Jewish people today?