As the opening Rashi tells us, our sedra takes place on the eighth day of the inauguration of the Mishkan. Aharon is instructed to take several sacrifices, among them a calf and goat as sin offerings (9:2-3). What is this sin offering for, and why a calf? Rashi (9:2) tells us that the reason for the calf was in order to inform Aharon that he had been forgiven for the part he had in the sin of the golden calf. Thus, it was also a sin offering, because it pertained to the sin of the golden calf. Rashi’s source here is the Midrash Tanchuma.[1] However, the Mizrachi asks an important question on Rashi here, which is going to be the main thrust of our discussion this week. We must introduce his question via a gemarra.[2]

The Mishna in Rosh Hashanah discusses which types of horns are kosher to be a shofar for Rosh Hashanah, and cites the opinion of the Rabbanan, who hold that all horns are kosher apart from that of a cow. In its second explanation of the Rabbanan’s opinion, the gemarra uses the reasoning that ‘a prosecutor cannot become the defendant’ (‘ein kateigor na’aseh saneigor’). What this means is that an object which has been used for sin (it was a prosecutor) cannot then be used in the practice of a mitzvah (as a defendant). In the case of the gemarra, as Rashi there explains, a cow had been used for the golden calf, and so now using a cow’s horn for the mitzvah of shofar would infringe on the rule that ‘a prosecutor cannot become the defendant.’ The reason for this rule is given by the Maharal[3] in the form of a parable. A precious item was stolen from the king, and the king was rather despondent as a result. However, luckily for him, his daughter was getting married in two weeks, and the king throws a huge wedding feast for her. As expected, all the guests brought presents, but one guest decided to bring, as his present, an object which looked exactly like the stolen object. Upon seeing this present, the king’s joyful mood was quickly deflated; he was upset because he had been reminded of his treasured object which had been stolen, and the despondency returned. So too, keveyachol, does the Heavenly court not want to be reminded of any sin that Bnei Yisrael have committed, via that object of sin being used for a mitzvah.

Taking this principle into account, the Mizrachi asks on our Rashi that according to his explanation of our pasuk, the same animal (a calf) that was used in the sin of the golden calf is now being used as a sacrifice in order to show that Aharon had been forgiven for the golden calf. Surely this violates our principle of ‘a prosecutor cannot become the defendant?’ Now I have to admit that when I first saw this question, I did not think much of it, purely because I thought that the answer was simple. The sacrifice here is not being used as an atonement for the golden calf; it is rather merely being used to inform Aharon that he has already been forgiven. Therefore, it is not really being used as ‘a defendant.’ However, this attempted answer is insufficient; apart from that fact that I am no longer sure if the logic is correct, the Midrash Tanchuma (Rashi’s source here) says clearly that this sacrifice actually caused the atonement and forgiveness itself. So we are stuck with the question of the Mizrachi, for which we shall try and present three answers. The first answer is that of the aforementioned Maharal, who makes a sweet distinction. He says that we do not always apply the rule of ‘a prosecutor cannot become the defendant.’ It depends on the relationship between the prosecutor (the sin) and the defendant (the mitzvah) in question. If, as in the gemarra’s case, the mitzvah is nothing to do with the sin [shofar is not connected to the sin of the golden calf], then we should not try to dilute the effectiveness of our mitzvah by unnecessarily bringing in an aspect of previous sins.

But if the whole point of the mitzvah is to atone for a certain sin, then our principle of ‘a prosecutor cannot become the defendant’ does not apply. For this, the Maharal gives an updated version of his parable. If the king were to throw a party in order to ‘get over’ his despondency at the loss of his stolen object, if someone then brought a ‘clone’ of that stolen object as a present, the king would not necessarily be despondent; the fact that someone tried to cheer him up with this object might actually reduce his melancholy. So too in our case, since the mishkan (and its inauguration sacrifices) is designed to be an atonement for the golden calf,[4] our principle of ‘a prosecutor cannot become the defendant’ does not apply. The Maharal also uses this to answer a later Rashi,[5] which tells us that the red heifer (parah adumah) was to atone for the golden calf. Again, surely this is a prosecutor becoming a defendant? But there is no problem, because the parah adumah was set up from its outset to fulfil the purpose of atoning for the golden calf. [Seemingly, there is a question on this approach: Rashi says[6] that the reason Aharon was not in charge of the parah adumah was because of our rule ‘a prosecutor cannot become the defendant.’ But surely the parah adumah’s purpose was to atone for the golden calf, and so the principle should not apply?[7]] The next answer of the Maharal is something which the above gemarra also points out, as does the Mizrach,[8] and in some editions it is put in brackets after our Rashi (Vayikra 9:2). And that is that our principle of ‘a prosecutor cannot become the defendant’ only applies to service which is done inside of the ohel mo’ed, unlike the calf sacrifice we are talking about in our sedra, which is performed outside the ohel mo’ed; on the altar. [One could ask the same question from the Rashi about Aharon and the parah adumah here; see the ikkar sifsei chachamim on that Rashi Bamidbar 19:3] Why should the fact that the service is outside the ohel mo’ed render it less susceptible to our principle ‘a prosecutor cannot become the defendant?’ Here we have two possible answers.

Either, the real point is that we are talking about a sacrifice (and so naturally is offered outside), and one cannot say that this sacrifice is a case of a ‘prosecutor becoming a defendant,’ because well before the golden calf, sacrifices had been used for positive use by Noach, the Avos, etc, and so a sacrifice is not really a ‘prosecutor.’ Or, as the Maharal explains,[9] real atonement occurs in the service done inside the ohel mo’ed, and it is only this ‘high-voltage’ atonement which is sensitive enough to be susceptible to our rule of ‘a prosecutor cannot become the defendant.’ Those are three answers to the Mizrachi’s question on Rashi. To bring this concept of ‘a prosecutor cannot become the defendant’ down to a practical level, the message seems to be to make sure that we do not pollute our mitzvos. Polluting mitzvos can take place on many levels. There is the more severe ‘pollution’ of ‘a mitzvah which is performed via a sin’ (mitzvah haba’ah be’aveirah), for example stealing a lulav for sukkos.[10] This would include any Robbin Hood ‘wannabees’ too. But there are more subtle ways to downgrade the effectiveness of one’s mitzvah; by not putting effort into one’s mitzvos to actually perform them properly according to halacha, or by doing mitzvos by rote or without feeling/enthusiasm. We have enough problems working with our sins; we do not want our mitzvos to stand against us in the Heavenly court too.

Have a great Shabbos,

[1] Midrash Tanchuma Shmini 4 [2] Gemarra Rosh Hashanah 26a [3] Gur Aryeh Vayikra 9:2 and Shemos 29:1 [4] At least according to Rashi. The Ramban disagrees; he holds that the plan to build a mishkan was conceived well before the sin of the golden calf. [5] Rashi Bamidbar 19:22 ‘parah’ [6] Rashi Bamidbar 19:3 ‘el’ – it’s at the end of the perek [7] One could answer that even though the rule does not apply, when we can arrange things so that the same atoning effect is created without using any prosecutors, we will. And so, with regards to the parah adumah, Elazar could be used instead of Aharon. [8] Mizrachi Bamidbar 19:24 [9] Gur Aryeh Vayikra 16, letter 8 [10] See gemarra Sukkah 29b-30a

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