Rabbi Bernard Fox
“And Hashem spoke to Moshe and Aharon saying: Do not cause the tribe of the families of Kahat to be cut off from among the Leveyim. Do this for them, so they should live and not die, when they approach the Holy of Holies. Aharon and his sons shall come and appoint each man individually to his task and his load. They shall not come in to see when the holy [vessels] are being wrapped up, lest they die.” (BeMidbar 4:17-20)
The Mishcan – Tabernacle – was the central feature of the camp of Bnai Yisrael in the wilderness. When Bnai Yisrael camped, the Mishcan was erected. When the nation traveled to its next encampment, the Mishcan was disassembled and transported by the Leveyim – the Levites – to this new location. Parshat BeMidbar describes the disassembly of the Mishcan. The various families of Leveyim were assigned the responsibility of transporting specific portions of the Mishcan. The family of Kahat was assigned the responsibility of transporting the most sacred elements. These elements included the altars, the Table of the Shewbread, the Menorah, and the Aron – the ark.
Our passages describe the special treatment of these sacred objects. As the Mishcan was disassembled, the Kohanim – the priests – placed each of the items assigned to the family of Kahat in its own individual wrapping. Only after each item was wrapped was it assigned by the Kohanim to members of the family of Kahat for transport. The Kahati – the member of the family of Kahat – was not permitted to unwrap the object or gaze inside the wrapping. The passages indicate that if a Kahati unwraps the object or looks into the wrapping, he is subject to death.
Maimonides does not include the prohibition against unwrapping these objects or looking into their wrappings as one of the six hundred thirteen commandments – Taryag mitzvot. Maimonides outlines the reason for this exclusion in the second principle of his Sefer HaMitzvot. He explains that in order for a commandment to be included within Taryag mitzvot, it must apply for all generations. Any commandment that is only applicable in a specific period of time cannot be included. The injunction against unwrapping these sacred objects or looking within their wrappings only applied in the wilderness. Once the Bait HaMikdash – the Holy Temple – was built this injunction became meaningless. The components of the Mishcan were no longer transported from one encampment to the next. The sacred objects were no longer placed in their special wrappings for transport. So, the injunction no longer had a context.
Maimonides acknowledges that there is a difficulty with his position. The Talmud explains that a person who steals one of the sacred vessels of the Mishcan or Bait HaMikdash is subject to death. The Talmud cites the final passage above as the source for this law. This passage can alternatively be translated to prohibit stealing one of the sacred vessels and as assigning the penalty of death for violation of this prohibition. This alternative translation is not the literal meaning of the passage. The literal meaning is that the Leveyim cannot unwrap the sacred vessels or gaze within their wrappings. However, the alternative translation provides an allusion to the restriction against stealing a sacred vessel and to the penalty of death for the violation of the prohibition.[1]
This prohibition does exist throughout the generations. Therefore, it seems to meet the standard required for inclusion within Taryag mitzvot. Why does Maimonides not include this prohibition?
Before we can consider Maimonides’ response to this question, additional information is needed. As previously explained, the penalty for stealing one of the sacred vessels is death. However, in this instance, the death penalty is not executed in the typical manner. Generally, the death penalty is administered by the courts. An individual who witnesses a crime or sin punishable by death does not have the authority to execute the penalty. He must bring the violator to courts for judgment. However, there are four instances in which the courts do not and cannot execute the death penalty. Instead, a righteous zealot is authorized to execute the violator. One of the four special instances is the stealing of a sacred vessel. In this instance, the courts do not execute the death penalty. Instead, it is left to the righteous zealot to execute the offender.
Maimonides outlines two considerations that dictate excluding this prohibition for Taryag mitzvot. First, the Talmud explains that our passage is merely an allusion to the prohibition. Maimonides explains that in order for a prohibition to be included in Taryag a more direct reference in the Torah to the prohibition is required. An allusion to the prohibition is not adequate. Second, Maimonides explains that a person who steals a sacred vessel is not subject to the death. This implies that he has not violated one of the 613 commandments.
This second consideration seems bizarre. A person who steals a sacred vessel is subject to execution by any righteous zealot! How can Maimonides contend that he is not subject to the death penalty? Apparently, Maimonides does not equate execution by the righteous zealot with application of the death penalty. In other words, the thief is not subject to the death penalty. Nonetheless, the righteous zealot is permitted and encouraged to execute the violator.
Nachmanides objects to Maimonides’ position. He asserts that the prohibition against stealing a sacred vessel is one of the 613 commandments. The source for the commandment is our final passage. Nachmanides also dismisses Maimonides’ second consideration. He explains that it is impossible to assume that the Torah allows and encourages the righteous zealot to execute one who steals a sacred vessel if the thief is not in fact subject to the death penalty. If the righteous zealot can execute the thief, he must have violated a commandment that is subject to the death penalty. Therefore, the authority of the righteous zealot to carry out the execution clearly indicates that a commandment associated with the death penalty has been violated.[2]
Nachmanides’ argument seems compelling. How is it possible for the righteous zealot to execute a person who steals a sacred vessel if this person has not violated a mitzvah punishable by execution? In order to understand Maimonides’ position another issue must be considered.
Maimonides explains in his code of law – Mishne Torah – that there are circumstances in which the courts can execute a person even though the individual has not violated a mitzvah that is punishable by death. Let us consider one of these instances. A person violates a commandment that is punishable by lashes. The lashes are administered. The person then violates the same commandment and lashes are again administered. The person violates the same commandment a third time. The courts do not administer lashes a third time. Instead, the person is subjected to kipah – imprisonment. He is imprisoned and placed on a restricted diet that ultimately results in digestive distress and death.[3]
There are a number of difficulties with Maimonides’ treatment of kipah. First, he does not indicate the source for the courts’ authority to administer this consequence. In other words, the person has repeatedly violated a commandment punishable by lashes. The courts are authorized by a specific commandment to administer lashes. But the person has not violated a commandment punishable by death. From where do the courts derive the authority to administer the consequence of kipah? Second, Maimonides places his discussion of kipah in the chapter of his Mishne Torah that deals with the commandment that authorizes the courts to administer lashes. What is the connection between the commandment authorizing lashes and this consequence of kipah?
Maimonides provides a hint to his position in the opening of this chapter. He explains that lashes are administered in three instances. The first instance is the violation of a negative commandment associated with karet – forfeiture of the afterlife – and there is no death penalty administered by the court for the violation of this mitzvah. The second instance is the violation of a negative commandment associated with the death penalty, but the penalty is not administered by the courts; instead it is left to the heavenly court to administer. The third instance is the violation of a negative commandment that involves an action but for which no punishment is specified. In all of these instances, the courts are required to administer lashes. This seems to be a cumbersome formulation. Maimonides could have expressed himself far more concisely. He could have explained that lashes are the general -- or default -- punishment for the violation of any negative commandment involving an action. If the violation is not associated with any other punishment carried out by the courts, lashes are administered. This simple principle would cover all of the instances enumerated by Maimonides. Why did Maimonides provide a listing of all of the individual instances in which lashes are administered rather then providing a simple, concise principle?
Maimonides’ formulation reflects his fundamental understanding of the punishment of lashes. Lashes are not a typical punishment. It is not engendered as a direct consequence of the violation of a specific commandment. Maimonides seems to contend that the courts are charged with the responsibility of enforcing observance of the commandments. In order to carry out this responsibility they are invested with the authority to administer the punishment of lashes in cases in which a severe violation of the Torah takes place. Maimonides opens the chapter by listing the types of violations that are regarded as adequately severe as to require the courts to administer this punishment. Maimonides adopts this formulation in order to communicate that lashes are not the administered by the courts as a direct result of the violation of the commandment. Instead, lashes are administered in order to enforce overall observance of the Torah. Therefore, the violation of any commandment of adequate severity requires that the courts respond with the administration of the punishment of lashes.
An example will help illustrate this distinction. If a person commits murder, he is subject to the death penalty. This punishment is a direct result of the violation. The violation carries with it the punishment of death. In contrast, if a person eats meat and milk, he receives lashes. It seems that according to Maimonides, this is not a direct result of the violation. It is not completely proper to assert that the violation carries with it the punishment of lashes. Instead, the violation is of sufficient severity as to require a punitive response from the courts. Lashes are the punitive response that the courts are authorized to administer.
This interpretation of the punishment of lashes provides an explanation of Maimonides’ treatment of kipah. The consequence of kipah is applied in an instance in which standard tool provided to the courts to respond to violations of the Torah has proven ineffective. The person has received lashes for the violation on multiple occasions without effect. He continues to violate the same mitzvah. The commandment authorizing the courts to administer lashes charges the courts with the responsibility of assuring observance of the Torah. Implicit in this commandment is the responsibility to take more effective measures – such as kipah – in instances in which lashes are ineffective. Maimonides places the law of kipah in this chapter that discusses lashes in order to communicate the source of the courts’ authority to utilize kipah. The commandment that authorizes lashes implicitly charges the courts with the responsibility to take this more drastic measure when lashes prove ineffective. This interpretation explains the placement of the law of kipah in the chapter is devoted to the commandment authorizing lashes and identifies the source of the courts’ authority to administer this consequence. In short, the commandment authorizing lashes implicitly empowers the courts to resort to measures – such as kipah – in instances in which the typical judicial punishment of lashes is ineffective.
Let us now return to Nachmanides’ criticism of Maimonides’ position regarding stealing a sacred vessel. Both acknowledge that in this instance the righteous zealot is authorized to take the life of the thief. Nachmanides argues that this authority presumes that a mitzvah has been violated. Maimonides argues that this consequence is unique. It does not imply the violation of a commandment. Nachmanides’ criticism is simple. How is it possible for the Torah to authorize an execution if no commandment has been violated?
In order to answer this question, three additional points must be noted. First, Bait HaBechirah, in his comments on this issue notes that the act of stealing a sacred vessel does not meet the technical legal requirements required for the act to be regarded as theft. In halacha, the crime of stealing always involves the violation of the owner’s right of possession. The crime presumes the existence of an owner. A sacred vessel does not have an owner in the typical sense. The object is a component or element of the Bait HaMikdash or Mishcan. But its identity as an element of the Holy Sanctuary is not regarded as ownership.
Second, Bait HaBechirah explains that the stealing of the vessel is not prohibited by any commandment that explicitly prohibits this activity. Instead, it is derived from our passage. Bait HaBechirah acknowledges that our passage’s fundamental message is that it is prohibited for the Leveyim to glance at the sacred vessels as they are covered by the Kohanim in their wrappings. Nonetheless, he indicates that this passage serves as a derivation for the prohibition against stealing one of these vessels.[4]
Let us consider this second point more carefully. Bait HaBechirah seems to maintain that the stealing of a sacred vessel is clearly prohibited. However, on technical grounds it is not considered a violation of the standard commandment prohibiting stealing. Nonetheless, our passage does communicate that the activity is prohibited. He makes no mention of the Talmud’s device for relating the prohibition to the passage though an alternative translation. He seems to imply that this alternative translation is not the fundamental link to our passage. Instead, this device merely brings to our attention a more fundamental link. What is this link?
The covering of the sacred vessels in their wrappings and the prohibition against looking upon them implies that these objects are to be treated with extreme deference. This deference prohibits the Leveyim from directly handling the objects. They can only transport them once they are installed in their wrappings. This deference does not only prohibit the Leveyim from handling the objects. It also prohibits even gazing upon them! It seems that Bait HaBechirah is suggesting that stealing such an object is clearly inconsistent with the attitude of extreme deference required by the Torah. So, although the Torah does not state an explicit commandment prohibiting stealing one of the sacred vessels, it is quite clear that such behavior is an affront to the sanctity of the object. In short, no specific commandment prohibits stealing the sacred vessel. But the Torah’s overall treatment of these objects clearly communicates that this behavior is grossly inappropriate.
The third point that must be noted is Maimonides’ placement of this law in his code – Mishne Torah. Maimonides places his discussion of stealing a sacred vessel and the consequences for this act in the same chapter that discusses the commandment authorizing lashes and kipah![5] Why is the discussion placed in this chapter?
As explained earlier, the commandment authorizing lashes fundamentally authorizes the courts and charges them with the responsibility of ensuring observance of the Torah. This responsibility is the basis for the administration of lashes and kipah. But both of these measures can only be taken by the courts. The courts can only act when a specific commandment has been violated. Stealing a sacred vessel presents a unique dilemma. Because of technical considerations, no specific commandment has been violated. The courts are powerless to respond. Nonetheless, an egregious violation of Torah principles has taken place. How can this dilemma be addressed?
Maimonides seems to maintain that the commandment authorizing lashes is not restricted to the courts. The nation is charged with the enforcement of the Torah. The courts are the agent of the nation. But in an instance in which the courts are not empowered to act – when no specific commandment has been violated – then the nation is responsible to respond with extra-judicial measures. The righteous zealot is authorized and expected to redress the violation.
We can now understand Maimonides’ position. The key to this understanding is to recognize that Maimonides contends that the actions of the righteous zealot are an extra-judicial measure. It is specifically because no explicit commandment has been violated, that an extra-judicial response is required. There is no question that stealing the sacred vessel is an egregious violation of Torah principle. But the court cannot act as no specific mitzvah is violated. Therefore, the same commandment that authorizes the nation to administer lashes -- or kipah -- through the courts authorizes and urges the righteous zealot to take action.
This interpretation of Maimonides’ position resolves another issue. There is a general principle that when a person commits a violation that simultaneously subjects him to two possible punishments, the courts apply the more severe of the two punishments. For example, if a person ignites a fire on Shabbat and this fire burns someone’s crops, the violator is executed for the violation of Shabbat. But, he is not required to first make payment for damages.[6] Based on this principle Rav Eliezer Shach Zt”l raises a simple question. In addition to a person who steals a sacred vessel, there are other instances in which the righteous zealot is permitted and encouraged to execute the violator. One of these involves a violation which the courts can punish with lashes. Rav Shach asks: If the person can be executed by the religious zealot, how can the punishment of lashes ever be administered? The principle discussed above should apply. The person should be left to the zealots to execute and the courts should not be permitted to administer lashes.[7] Similarly, this question can be expanded to include all instances in which lashes are administered. If the violation continues, the more severe punishment of kipah can be administered. How can the courts ever administer lashes, if the violation is ultimately subject to this more severe punishment?
Rav Shach offers a number of insightful answers to his question. However, the above analysis suggests an obvious response. The principle that the potential of a more severe punishment exempts the violator from the less severe punishment only applies when dealing with the typical punishments administered by the courts. According to Maimonides, any punishment executed by the righteous zealot is extra-judicial. It is not court-administered. Therefore, this principle does not apply. This explanation also explains the administration of lashes despite the potential for the more severe punishment of kipah. Kipah is not a typical punishment. It is a completely different class of response. It is only allowed when the standard response of lashes has not been effective. Because it is only permitted in such circumstances, it is not proper to argue that the potential application of this punishment exempts the violator from the standard punishment of lashes.
[1] Mesechet Sanhedrin 81b.
[2] Rabbaynu Moshe ben Nachman (Ramban / Nachmanides), Critique on Maimonides’ Sefer HaMitzvot, Principle 3.
[3] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Sanhedrin 18:4.
[4] Rabbaynu Menachem Me’eri, Bait HaBechirah, Mesechet Sanhedrin 81b.
[5] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Sanhedrin 18:6.
[6] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Genayvah 3:1-2.
[7] Rav Eliezer Shacah, Avi
Ezri, Commentary on Maimonides Mishne Torah, volume 4, p 303.