Parshas Ekev - chukim and mishpatim

The passuk says at the beginning of this week’s sedrah (7:12)

וְהָיָה עֵקֶב תִּשְׁמְעוּן אֵת הַמִּשְׁפָּטִים הָאֵלֶּה וּשְׁמַרְתֶּם וַעֲשִׂיתֶם אֹתָם וְשָׁמַר ה' אֱלֹקֶיךָ לְךָ אֶת הַבְּרִית וְאֶת הַחֶסֶד אֲשֶׁר נִשְׁבַּע לַאֲבֹתֶיךָ

And it will be if you obey these mishpatim and observe them carefully, then Hashem will keep faithfully for you the covenant that He swore to your fathers.

This passuk only mentions the observance of the mishpatim (mitzvos that we can understand).

However the passuk at the end of last week’s sedrah (7:11) mentions both chukim (mitzvos whose reason we cannot understand) and also mishpatim:

וְשָׁמַרְתָּ אֶת הַמִּצְוָה וְאֶת הַחֻקִּים וְאֶת הַמִּשְׁפָּטִים אֲשֶׁר אָנֹכִי מְצַוְּךָ הַיּוֹם לַעֲשׂוֹתָם

And you should guard the commandments and the chukim and the mishpatim which I command you today to do them.

A further variation appears later in this week’s sedrah where the passuk (8:11) says

הִשָּׁמֶר לְךָ פֶּן תִּשְׁכַּח אֶת ה' אֱלֹקֶיךָ לְבִלְתִּי שְׁמֹר מִצְו‍ֹתָיו וּמִשְׁפָּטָיו וְחֻקֹּתָיו אֲשֶׁר אָנֹכִי מְצַוְּךָ הַיּוֹם

Take care lest you forget the Hashem and fail to keep His commandments, His mishpatim and His chukim, which I command you today.

Here the passuk also mentions both chukim and mishpatim, but it does so in the reverse order of the passuk at the end of Va’eschanan. At the end of the Va’eschanan the passuk mentions chukim and then mishpatim, however in this passuk the Torah mentions mishpatim and then chukim.

• Why does the passuk make these three different references to the mishpatim and to the chukim of the Torah?

Concerning driving out the ז' עמים from Eretz Yisrael, the passuk says (7:22)

וְנָשַׁל ה' אֱלֹקֶיךָ אֶת הַגּוֹיִם הָאֵל מִפָּנֶיךָ מְעַט מְעָט לֹא תוּכַל כַּלֹּתָם מַהֵר פֶּן תִּרְבֶּה עָלֶיךָ חַיַּת הַשָּׂדֶה

And Hashem will dislodge those peoples before you little by little; you will not be able to put an end to them at once, lest the wild beasts multiply against you (in the land that has been left uninhabited).

However earlier in the sedrah the passuk says (9:3)

וְיָדַעְתָּ הַיּוֹם כִּי ה' אֱלֹקֶיךָ הוּא הָעֹבֵר לְפָנֶיךָ אֵשׁ אֹכְלָה הוּא יַשְׁמִידֵם וְהוּא יַכְנִיעֵם לְפָנֶיךָ וְהוֹרַשְׁתָּם וְהַאַבַדְתָּם מַהֵר כַּאֲשֶׁר דִּבֶּר ה' לָךְ

And you should know this day that Hashem is crossing at your head, a devouring fire; He will wipe them out and He will subdue them before you, so that you may quickly dispossess and destroy them, as Hashem has promised you.

• Why does one passuk say that you should drive out the ז' עמים little by little and the other passuk say that you should destroy them quickly?

The Meshech Chachmah explains as follows:

The gemara says in Chullin (7a)

...השתא בהמתן של צדיקים אין הקב"ה מביא תקלה על ידן צדיקים עצמן לא כל שכן... מאי בהמתן של צדיקים דרבי פנחס בן יאיר הוה קאזיל לפדיון שבויין... אקלע לההוא אושפיזא רמו ליה שערי לחמריה לא אכל חבטינהו לא אכל נקרינהו לא אכל אמר להו דלמא לא מעשרן עשרינהו ואכל אמר ענייה זו הולכת לעשות רצון קונה ואתם מאכילין אותה טבלים...

Rabbi Zeira answered: Now, since even with regard to the animals of tzaddikim, Hashem does not cause mishaps through them, is it not all the more so true that tzaddikim themselves would not experience mishaps (regarding eating forbidden food)?...

The gemara asks: What is the reference to the animals of tzaddikim, about whom it is said that Hashem does not cause mishaps through them? It is based on the incident where Rabbi Pinchas ben Yair was going for the redemption of captives…

After crossing the river, Rabbi Pinchas ben Yair came to a certain inn. His hosts placed barley before his donkey for him to eat. The donkey did not eat it. They sifted the barley with a utensil, but the donkey did not eat it. They separated the chaff from the barley by hand, but the donkey still did not eat it. So they wondered why the donkey would not eat the barley. Rabbi Pinchas ben Yair said to his hosts: Perhaps ma’aser has not been taken from the barley? They took ma’aser and the donkey ate it. Rabbi Pinchas ben Yair said, “This poor animal is going to perform the will of its Maker, and you are feeding it tevel?”

It would appear from the gemara, that since the donkey of Rabbi Pinchas ben Yair belonged to Rabbi Pinchas ben Yair, therefore it acquired some of the sensitivity to devarim she’bi’kedushah that Rabbi Pinchas ben Yair had, and so would not eat tevel.

However, a difficulty with this explanation is as follows:

It would be fine if the gemara was talking about an issur achilah which occurs because the item is a davar tamei, such as food from a non-kosher animal, then we could understand that even though the donkey does not have to keep the Torah, nevertheless it was naturally repulsed by the tumah inherent in the food. However tevel is not prohibited because there is any tumah associated with tevel, it is only prohibited because Hashem commanded us to take ma’aser from produce, and so before ma’aser is taken it is forbidden to eat the produce.

| How was it possible for the donkey of Rabbi Pinchas ben Yair to acquire a natural instinct not to eat something which was not repulsive but which was simply prohibited because of the mitzvah incumbent on it?

It is evident from this gemara that even although there is only a reason due to halacha not to eat tevel, nevertheless Rabbi Pinchas ben Yair was on such a high madregah that for him there was a natural repulsion not to eat tevel. In other words he was able to feel the retrogradeness involved in eating tevel, even although this is an issur achilah which does not relate to an inyan of tumah at all. Because this became instinctive to Rabbi Pinchas ben Yair, his donkey also acquired the same sort of behaviour instinctively, and therefore also naturally did not want to eat tevel.

In other words, although normally we differentiate between mishpatim (mitzvos which we can understand) and chukim (mitzvos which we cannot understand), the higher a madregah a person is on, the more those mitzvos which he previously perceived as chukim will become mishpatim. Since he will now be able to feel the correctness or incorrectness of that course of action which is mandated or prohibited by the chok, he will perceive the chok to be a mishpat, something which is fitting and appropriate, in addition to being something that Hashem has commanded.

Based on this understanding, we can explain why the passuk at the end of Va’eschanan refers to chukim and mishpatim, whereas the passuk at the beginning of this week’s sedrah only refers to mishpatim. This is because the passuk at the beginning of this week’s sedrah is referring to a madregah at which we will be able to feel and perceive the reasons for all of the chukim, and therefore we will only be left with the observance of mishpatim. However the passuk at the end of Va’eschanan is talking about a time at which the benei yisrael are still rising in their madregah and the chukim are become mishpatim for them, so the passuk mentions chukim and then mishpatim. And the passuk later in this week’s sedrah is talking about a time at which the benei yisrael are falling in madregah and the mishpatim are becoming chukim for them, so the passuk first mentions mishpatim and then chukim.

Following on from this train of thought:

At the beginning of Parshas Chukas (19:2), Rashi explains that the umos ha’olam specifically seek to deter the benei yisrael from the observance of chukim:

זאת חקת התורה: לפי שהשטן ואומות העולם מונין את ישראל לומר מה המצוה הזאת ומה טעם יש בה לפיכך כתב בה חקה גזירה היא מלפני ואין לך רשות להרהר אחריה

Because the Satan and the umos ha’olam mock the benei yisrael saying, “What is this mitzva and what reason could there be for it?” Therefore the Torah writes (concerning the Parah Aduma) the word chukah – it is a decree from before Me and you do not have permission to cast aspersions against it.

Subsequently we can understand that when the benei yisrael were on such a high madregah that they were able to feel and perceive the reasons for the chukim, it was not dangerous for them to let the ז' עמים live in that part of Eretz Yisrael which they had not conquered, for these peoples could not mock them or pose a challenge to their observance of the Torah.

However when the benei yisrael fell to a lower madregah at which once more the chukim were simply a statute for them and they were not able to understand them, it was then inadvisable to let the ז' עמים remain in Eretz Yisrael because they could then deter them from observing the chukim. In this case it was better for the benei yisrael to quickly drive them out from all parts of Eretz Yisrael.

That is why the passuk in the first aliyah says

וְנָשַׁל ה' אֱלֹקֶיךָ אֶת הַגּוֹיִם הָאֵל מִפָּנֶיךָ מְעַט מְעָט לֹא תוּכַל כַּלֹּתָם מַהֵר פֶּן תִּרְבֶּה עָלֶיךָ חַיַּת הַשָּׂדֶה

And Hashem will dislodge those peoples before you little by little; you will not be able to put an end to them at once, lest the wild beasts multiply against you (in the land that has been left uninhabited).

Because this passuk is talking about a time at which we only have mishpatim, in which case we can afford to be cautious and let the ז' עמים remain in Eretz Yisrael due to the practical consideration of them serving as a deterrent for the wild animals.

However the passuk in the second aliyah is talking about a time when the benei yisrael perceive the chukim as chukim and not as mishpatim, in this case it is dangerous to leave the ז' עמים in Eretz Yisrael because they will, through their mockery, deter the benei yisrael from observance of the chukim. In this case there is a prerequisite to drive them out quickly, as the passuk says

וְיָדַעְתָּ הַיּוֹם כִּי ה' אֱלֹקֶיךָ הוּא הָעֹבֵר לְפָנֶיךָ אֵשׁ אֹכְלָה הוּא יַשְׁמִידֵם וְהוּא יַכְנִיעֵם לְפָנֶיךָ וְהוֹרַשְׁתָּם וְהַאַבַדְתָּם מַהֵר כַּאֲשֶׁר דִּבֶּר ה' לָךְ

And you should know this day that Hashem is crossing at your head, a devouring fire; He will wipe them out and He will subdue them before you, so that you may quickly dispossess and destroy them, as Hashem has promised you.