Writing a Sefer Torah

OK, let's do this! The latest shiur I attended on Sanhedrin:

Two Mitzvot to Write

By the Rambam's count(סה"מ יז, יח) there are two mitzvot to write a torah scroll, one applying to every Jew, the other only to a king. The source of the King's obligation is explicit in the Torah(דברים יז:יח), while the source of the general obligation is סנהדרין כא ב.

וכותב ספר תורה לשמו: תנא ובלבד שלא יתנאה בשל אבותיו אמר (רבא) אף על פי שהניחו לו אבותיו לאדם ספר תורה מצוה לכתוב משלו שנאמר (דברים לא, יט) ועתה כתבו לכם את השירה איתיביה אביי וכותב לו ספר תורה לשמו שלא יתנאה בשל אחרים מלך אין הדיוט לא לא צריכא לשתי תורות וכדתניא (דברים יז, יח) וכתב לו את משנה וגו' כותב לשמו שתי תורות אחת שהיא יוצאה ונכנסת עמו ואחת שמונחת לו בבית גנזיו אותה שיוצאה ונכנסת עמו (עושה אותה כמין קמיע ותולה בזרועו שנאמר (תהלים טז, ח) שויתי ה' לנגדי תמיד כי מימיני בל אמוט) אינו נכנס בה לא לבית המרחץ ולא לבית הכסא שנאמר (דברים יז, יט) והיתה עמו וקרא בו מקום הראוי לקראות בו

So Rava introduces the general obligation to write a torah from "ועתה כתבו לכם את השירה...". Abaye disagrees, but Rav M pointed out that it's not clear what assumption he disagrees with:

• Perhaps he disagrees that the general obligation has a requirement of לשמו, reserving that requirement only for the king
• in which case the baraita about the king's two scrolls refers to one for his general obligation and another for his kingly obligation
• Or perhaps he disagrees that there even is a general obligation to write a Torah scroll
• in which case the baraita apparently is saying that the king requires two scrolls as king, one that he carries around and the other that he keeps in his home

Parshat Zachor: Derabanan or Deoraita

So, in the second half of Rav M's lecture, I noticed that he understands the machloket whether Parshat Zachor is derabanan or deoraita differently than I did. I spoke to him briefly afterwards and indeed he takes a more subtle approach and I'm going to try and do it justice.

Both the Sefer Hachinuch and the Magen Avram(או"ח תרפה:ב) describe the debate about Parshat Zachor, whether it is Miderabanan or Mideoraita. I took this at face value to be saying that either the sages instituted it as a way to fulfill the mitzva of remembering Amalek or else it is simply the Torah method to fulfill the mitzva. There are several problems with this understanding:

• The Mitzva, as stated in the Torah, doesn't sound like it involves reading this exact parsha
• There was clearly some involvement of the Sages, at the very least in setting the time for reading Parshat Zachor, since yearly torah reading is a much later minhag
• The Gemara in Megilla 18A that I quoted in the previous post learns halachot of Megilla reading from Parshat Zachor. If Parshat Zachor is mideoraita, then how can we learn from it to Megilla reading, something that was instituted later

Rav Markus gave a more subtle explanation of the debate, both sides of which involve the participation of both the sages and Torah law. 

• Chazal instituted Parshat Zachor along with the other 4 special parshiot. One does fulfill the Torah commandment to remember Amalek but ultimately there are other paths to fulfillment and any verbal retelling of the story should suffice.
• The Torah commanded us to remember Amalek, but left it to Chazal to decide how. Chazal instituted Parshat zachor as the means and so it is now the only method to fulfill the mitzva. This concept of תורה מסרה לחכמים is also used to explain issur melacha on chol hamoed and שאר עינוים on Yom Kippur.

Relationship Between the Amalek-Related Mitzvot

So, the first half of Rav M's class focused on a fundamental question that I didn't consider in my learning of the sugya: what is the relationship between the mitzva to eliminate Amalek and the mitzva to remember Amalek? (similar to the question of Maakeh and Lo Tasim Damim)

• Sefer Yereim says that these are actually two parts of a single mitzva. The obligation to remember Amalek is simply a requisite for bringing about their eventual destruction
• The Rambam Sefer Hamitzvot(מ"ע קעט) says they are two separate mitzvot. He ultimately agrees with the Yereim though that the mitzva to remember is there to help implement the mitzva to eliminate Amalek
• There was some discussion about whether the Rambam's Mishneh Torah(מלכים ה:ה) took a different approach to that in Sefer Hamitzvot. I wasn't really convinced by those who were arguing there was a difference--the Rambam is very succinct here and what he says sounds compatible with his approach there.
• The Sefer Hachinuch sounds basically the same as the Rambam, although he does mention an independent reason for the mitzva to remember: so that we should know that Hashem hates those who want to harm the nation of Israel
• The Minchat Chunuch goes further, suggesting that the two mitzvot are independent of one another

So ultimately we have two basic answers:

1. The mitzva to eliminate Amalek is the dominant one, with the mitzva to remember being subservient to it
2. The mitzvot are independent of one another, despite their similar context

 The Rav brought 3 nafka minot of this machloket:

1. The Sefer Hachinich states that women are excluded from the obligation to remember because it's the men who are actually required to make war on Amalek. The Minchat Chinuch argues that the mitzvot are independent so women should be obligated to remember Amalek(he also argues that in any case women are obligated to make war on Amalek too)
2. Once Amalek ARE destroyed are we still obligated to remember them?
3. Rav Frank in מקראי קודש brings the question of whether one can fulfill his obligation if he reads the parsha at the end of Beshalach instead of parshat Zachor. If the mitzvot are independent, then yes. If not then only Zachor mentions the obligation to eliminate Amalek, so only it will suffice.

Let's Learn: Amalek-Related Mitzvot

So today's source sheet at the yeshiva next door said "No sources today. Learn the mitzvot regarding Amalek on your own." So let's try that.  Today's post will be a summary of what I learned on my own. Then I'll make another post once I've read some contemporary sources and I'll note some of the things I missed, mistakes I made, other approaches, etc.

So Amalek is mentioned twice in the Torah:

• at the end of parshat Beshalach when they attack Bnei Yisrael
• at the end of parshat Ki Tetzeh when Moshe commands Bnei Yisrael in the mitzvot

Sefer Hachinuch lists three mitzvot we learn from parshiah in Ki Tetzeh:

1. Remember what Amalek did
2. Don't forget what Amalek did
3. Wipe-out all of Amalek's descendents

Parshat Zachor with a Minyan

One of the more interesting questions I came across regards the status of Parshat Zachor, which we read, directly from the Torah, once a year. It's an interesting question because it gets to the heart of the matter as to how to fulfill the mitzva of Remembering. Basically the two opinions are:

1. The mitzva is to remember what Amalek did and express it verbally, but there is no formal way you're supposed to express it. Chazal then came and instituted Parshat Zachor in order to formalize this a bit more.
2. Reading Parshat Zachor as we read it is actually the Torah mitzva.

This second approach would seem to be the more surprising one, since other mitzvot to "remember" don't need to be read from an actual Torah scroll. Nevertheless, the Magen Avraham(או"ח תרפה:ב)lists the rishonim who hold of this view. So where does this approach come from?

The Magen Avraham lists the gemara in Megila 18A as a possible source. It learns out our obligation to read megilla from a sefer from our obligation to read Zachor from a sefer. The question we need to ask, presumably, is whether the drashot are legit or are merely an asmachta:

קראה על פה לא יצא וכו':מנלן אמר רבא אתיא זכירה זכירה כתיב הכא והימים האלה נזכרים וכתיב התם (שמות יז, יד) כתב זאת זכרון בספר מה להלן בספר אף כאן בספר וממאי דהאי זכירה קריאה היא דלמא עיון בעלמא לא סלקא דעתך (דכתיב) (דברים כה, יז) זכור יכול בלב כשהוא אומר לא תשכח הרי שכחת הלב אמור הא מה אני מקיים זכור בפה:

Two weird things about this limmud are:

• The hekkesh is from Beshalach, rather than from Ki Tetzeh where we actually get the mitzva of remembering Amalek
• The gemara brings a drasha that Zachor needs to be vocalized, but it doesn't bring any proof that it needs to be read from the sefer Torah with a minyan. For example, maybe you could say it when you're alone from a copy of the parsha or even from memory. Shema, vidui maaserot/bikumim, and the obligation to remember the Exodus all have less stringent requirements, for example.

So maybe it's just an asmachta. But maybe we just need to dig a little deeper... left So let's actually look at the pasuk in Beshalach:

וַיֹּאמֶר יְהוָה אֶל-מֹשֶׁה, כְּתֹב זֹאת זִכָּרוֹן בַּסֵּפֶר, וְשִׂים, בְּאָזְנֵי יְהוֹשֻׁעַ:  כִּי-מָחֹה אֶמְחֶה אֶת-זֵכֶר עֲמָלֵק, מִתַּחַת הַשָּׁמָיִם (שמות יז:יד(

The Ramban understands the pasuk as follows: Moshe is commanded to write the Amalek story in the Torah in order that we remember it:

יאמר כתוב זאת בספר תורתי שיזכרו בני ישראל מה שעשה עמלק. 

According to this understanding, when we are actually commanded to remember Amalek in Ki Tetzeh, it's quite natural to assume that the way we are supposed to do so is by reading from the Torah, since that's the reason Moshe included the story there to begin with. So that explains the opinion that Parshat Zachor is Mideoreita a bit better.

Other Topics

Some other topics I stumbled upon were how often do we have to remember, are women required to remember, as well as the question of why Amalek deserve such harsh retribution, but those will have to wait for another time...

שפטים ושטרים תתן לך בכל שעריך

Well, I haven't been to Sanhedrin shiur recently due to career-related sinks on my time, so instead I began reading this great series of shiurim on Sanhedrin by Rav Ohad Fiksler. So, hopefully this will be the first in a series of posts as I read through those.

So let's back it up and talk about the mitzva to create a Torah judicial system throughout the land.

שֹׁפְטִים וְשֹׁטְרִים תִּתֶּן לְךָ בְּכָל שְׁעָרֶיךָ אֲשֶׁר ה' אֱלֹקֶיךָ נֹתֵן לְךָ לִשְׁבָטֶיךָ וְשָׁפְטוּ אֶת הָעָם מִשְׁפַּט צֶדֶק" (דברים ט"ז,יח).

Does it Apply in Chutz La'Aretz?

The question is whether this mitzva applies only within Eretz Yisrael or also in communities in Chutz La'Aretz. And, in fact, there are two opinions...

According to the Ramban's understanding(על דברים ט"ז,יח) of the Rambam, the mitzva to appoint judges only applies within Eretz Yisrael. The Ramban himself feels that it also applies in chutz la'aretz, but not necessarily in every single city

 אתה מושיב בכל פלך ופלך ואי אתה מושיב בכל עיר ועיר

And note that Rav Fiksler makes a compelling argument that the Rambam may have actually held of the Ramaban's opinion himself.

But, in any case, we have too opinions and according to both there is a difference between our obligation to set-up halachic legal systems in Eretz Yisrael and Chutz La'Aretz. The the question, however, WHY? Why is the difference between different the different lands and why the difference between the two opinions?

Mitzvot in Eretz Yisrael

A more basic question is whether the difference in our obligation to create a Judicial system in Eretz Yisrael vs. Chutz La'Aretz is quantitative or qualitative. Is our obligation less in Chutz La'Aretz simply due to the assumption that fewer Jews reside there or is there some more essential difference between the two lands?

I'm reminded of the oft-quoted Ramban(ויקרא יח כה) on Eretz Yisrael's special status as Hashem's Domain and the resultant special status that Mitzva observance has there. According to this, we can certainly understand the Rambam's opinion(as understood by Ramban) that the mitzva only applies in Eretz Yisrael. Because of the increased importance of mitzva observance within the Land, there is a separate mitzva to create legal institutions to help enforce said observance.

Of course, the other opinion, that the mitzva of Shoftim Veshotrim also applies in Chutz La'Aretz, doesn't contradict this principal. Rather, a mitzva can exist for multiple reasons and so the mitzva in chutz La'Aretz exists generally to promote mitzva observance and to help settle disputes in a civil manner. It nevertheless has a lesser importance and therefore the obligation allows for a more sparse distribution of Batei Din in Chutz La'Aretz

Permitted or Pushed-Off

Rav Soloveichik sets up his second shiur in שעורים לזכר אבי מרי ז"ל, titled טומאת כהנים לשבעת הקרובים, with the concepts of הותרה and דחויה.

These concepts appear when a prohibition is pushed aside for the sake of a commandment:

• Hutra- the prohibition ceases to exist when the mitzva is possible. The act is completely allowed, and in fact it's a mitzva.
• Dchuya- the prohibition still exists, but while the possibility of the mitzva remains it is "pushed-off"

What is the Nafka Mina between these two approaches? The main nafka mina is the status of the issur once the mitzva is over and done. So for instance, can the Cohen wear the special clothing that he serves in, which are shatnez, when he's not serving in the Temple? The Rambam, who says Dchuya, says it's prohibited, while the Raavad, who says Hutra, says it's permitted.

The Mitzva of Burial

In this case, the Rav is talking about the two cases where a Cohen is obligated to participate in burying the dead, overriding his general prohibition from becoming ritually impure.  The Rav summarizes the 3 opionions of Rashi, the Rambam, and the other rishonim:

מת מצווה	קרובים	שיטה
הותרה	הותרה	רש"י
הותרה	דחויה
דחויה	הותרה	ראשונים
דחויה	דחויה	רמב"ם

Anyway, more to come, as the Rav then gets into some of the conceptual difficulties in the Rambam...