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How Not to Desecrate Shabbos

Question:

“I was once told that the mekosheish was a frum Jew who did not really desecrate Shabbos. What does this mean?”

Foreword:

The story of the mekosheish, the man caught gathering wood on Shabbos, in Parshas Shelach, contains a host of conflicting and unusual midrashim. The story also serves as a springboard for many halachic and hashkafic issues. In order to appreciate fully these issues and midrashim, we must first analyze what the Torah tells us about this story, what Chazal derive from the pesukim, and some more halachic detail that is germane to the story. Then we will be in a position to discuss the question raised above.

The words of the Chumash

“When the Bnei Yisroel were in the Desert, they discovered a man gathering wood on Shabbos. Those who found the woodgatherer brought him to Moshe, Aharon and the rest of the community, and he was placed in custody, because it had not been explained what to do with him” (Bamidbar 15:32-34). The posuk then describes the punishment meted out to the woodgatherer. This was the first instance in history of beis din, a Jewish court, carrying out a ruling because someone defiled Shabbos.

Desecration of Shabbos is punishable by beis din only when many requirements are met, including that the perpetrator acknowledges that he is violating one of the 39 melachos of Shabbos, and that he accepts the punishment that the Torah metes out. The Gemara (Sanhedrin 41a) notes that the words of the Torah they found him gathering implies that the woodgatherer was caught in the middle of his act of violating Shabbos, and he continued desecrating Shabbos even after being warned that his action was liable to punishment by beis din.

Which melacha?

When the Mishnah lists the 39 melachos (Shabbos 73a), it does not include “gathering wood.” Indeed, which of the 39 melachos of Shabbos did the woodgatherer violate? Since the halacha requires that the desecrator be warned which melacha he is violating (see Shabbos 138a), this is important information to ascertain.

The Gemara (Shabbos 96b) cites three opinions concerning which melacha the mekosheish performed. According to Rav Yehudah, he carried through a public area on Shabbos. According to a second opinion, he was chopping down trees, thus violating the melacha of kotzeir, reaping, or, more accurately, disconnecting growing items from the ground. According to a third opinion, he violated the melacha of me’ameir, gathering things from where they grow or fall. This third opinion is also cited in the ancient commentary on Chumash, usually, but inaccurately, called the Targum Yonasan. Each of these three approaches requires some explanation.

Hotza’ah

One violates carrying on Shabbos min haTorah by transporting an item from a reshus harabim, an area meant for public use, into a reshus hayachid, an enclosed area, or vice versa. Alternatively, one can violate carrying by transporting an item more than four amos (about seven feet) through a reshus harabim. There are other details that need to be met that we will not discuss in this article.

However, this presents us with a conundrum. Since a desert is not a public thoroughfare or marketplace, carrying there should not violate Shabbos min haTorah. Rather, it should have the halachic status called a karmelis, an open area not meant for public use, in which carrying on Shabbos is prohibited only because of rabbinic injunction, which would leave the mekosheish exempt from violating the Torah prohibition of carrying on Shabbos.

The explanation is found in the following passage of Gemara (Shabbos 6a-b):

What qualifies as a reshus harabim? A street, a large marketplace, or a side road that is open on both sides…. But why does the Tanna not include a desert, since a different beraisa states, “What qualifies as a reshus harabim? A street, a large marketplace, a side road or the desert.” Abaya explains that there is no contradiction between these two statements, the latter beraisa is discussing the era when the Jews were living in the desert, and the first statement is discussing today. In other words, although a desert is usually considered a karmelis, when a large population, such as the entire Jewish people, is living in a desert, it qualifies as a “public area” for Shabbos purposes. Once the desert path on which the Bnei Yisroel were traveling is considered a reshus harabim, every part of that desert is now considered a reshus harabim (Biur Halacha, 345:7). Therefore, when the mekosheish carried there, he was carrying in a reshus harabim and violating the laws of Shabbos min haTorah.

Kotzeir

A second opinion that we quoted above held that the mekosheish was chopping down trees and thereby performed the melacha of kotzeir, reaping. The Gemara explains that someone harvesting wood on Shabbos violates the melacha of kotzeir (Shabbos 73b). According to this approach, it is curious that the Torah describes the mekosheish as “gathering wood,” not as chopping down trees.

Me’ameir

The third opinion explained that the mekosheish violated me’ameir, the fourth of the 39 melachos, according to the order in the Mishnah. This melacha prohibits gathering together items from where they grow or fall naturally. The Rambam mentions cases of someone who gathered food, feed or kindling, and also mentions someone who created a figcake or strung together figs, as acts that violate me’ameir min haTorah. According to many early authorities, these last two cases refer only to someone who took figs from where they fell near the tree and pressed or strung them together (Kesef Mishneh, Hilchos Shabbos 8:6, quoting Remach; Semag). However, many authorities disagree (Ma’aseh Rokei’ach; Nishmas Adam 13:1; Graz 340:15; Mishnah Berurah 340:38, and Eglei Tal 2:3 ff.), contending that, in these instances, for reasons beyond the scope of this article, one can violate me’ameir even when the fruit is not in its original location.

By the way, since people are less familiar with the melacha of me’ameir, someone could violate the melacha without realizing. For example, someone who collects fallen fruit in an orchard on Shabbos and throws them into a basket violates the melacha min haTorah (Mishnah Berurah 340:37).

The Gemara quotes a dispute whether me’ameir applies min haTorah to someone who gathers sea salt from its evaporation pits. Rava (or Rabbah, depending on a variant text) contends that this violates Shabbos min haTorah, whereas Abaya disagrees, contending that me’ameir is limited to items that grow from the ground (Shabbos 73b). There is a dispute among rishonim concerning how we rule. The Rambam rules that me’ameir is limited to items that grow from the ground (Hilchos Shabbos 8:5), whereas the Remach rules that me’ameir applies even to items that do not grow from the ground. Most later authorities conclude like the Rambam (Kesef Mishneh; Shulchan Aruch, Orach Chayim 340:9, Elya Rabbah, Graz and Mishnah Berurah; Chayei Adam 13:1; however, see Eglei Tal 2, who treats this matter as an unresolved dispute).

In conclusion, since lumber and kindling wood both grow from the ground, it is easy to understand that the mekosheish may have been violating the melacha of me’ameir by gathering fallen wood (Shabbos 96b).

We now understand the three opinions that the mekosheish may have been carrying in a reshus harabim, may have been cutting down trees, or may have been gathering fallen wood and violating the melacha of me’ameir. Now that we have discussed which melacha he violated, for a fuller understanding of the story we may want to attempt to identify who the mekosheish was!

Was he Tzelafchad?

The Torah (Bamidbar 27 1-7; 361-11) recounts the story of the daughters of Tzelafchad. Tzelafchad participated in the Exodus from Mitzrayim but did not make it to Eretz Yisroel. The posuk tells us that Tzelafchad left five daughters, but no sons. Rabbi Akiva, quoted in a passage of Gemara (Shabbos 99b), is of the opinion that the woodgatherer described above was Tzelafchad. To quote the passage of Gemara:

Our sages taught: The mekosheish was Tzelafchad, as the Torah says, And the Bnei Yisroel were in the Desert, and they found a man gathering wood on Shabbos,’ and later on it says, Our father died in the Desert. Just as the second verse refers to Tzelafchad, so does the first.’ This is the opinion of Rabbi Akiva. Rabbi Yehudah ben Beseira said to him, ‘Akiva, either way you will be punished for saying this. If you are correct, the Torah hid this information and you had the audacity to reveal it! And if you are incorrect, you are spreading lies about a tzadik!’”

Midrashim take sides

Our Gemara does not say explicitly whether Rabbi Yehudah ben Beseira agreed with Rabbi Akiva or not. His criticism of Rabbi Akiva was for recounting the information. However, there are many midrashim that weigh in on this issue, some agreeing with Rabbi Akiva, including the Zohar, whereas others dispute his claim. For example, we find the following statement in Sifrei Zuta (Bamidbar 15, 32): “Rabbi Shimon said, ‘It is impossible to say that the mekosheish was Tzelafchad.’

The Yalkut Shimoni, a collection of reliable early midrashim, many of them no longer extant anywhere else, quotes a different tanna who also disagrees with Rabbi Akiva (#749).

Response of Rabbi Akiva

Although the Gemara does not cite a response of Rabbi Akiva to Rabbi Yehudah ben Beseira’s criticism for revealing information that the Torah kept hidden, there is a Midrash that cites a very interesting approach, explaining more about Tzelafachad and what he wanted to accomplish. I will present this approach, as explained by the Maharsha — but first we need a rather extensive introduction.

Although Shabbos is a very strict mitzvah, the laws of Shabbos contain some very interesting rules. One of these rules is called melacha she’einah tzericha legufah, which translates literally as a work activity that is not necessary for itself, an expression that is almost meaningless in English. There are many different approaches how to explain this concept, variant ways to explain the words, and a dispute what the halachic status is, all of which combine to create a confusing discussion. I will endeavor to explain melacha she’einah tzericha legufah as it applies to our discussion.

To begin with, let us examine one of the approaches to explain the concept.

The 39 melachos of Shabbos are derived from the activities performed in the building of the Mishkan in the Desert. Notwithstanding the importance of constructing the Mishkan as quickly as possible, it was strictly prohibited to perform any aspect of its building on Shabbos. From this we see that whatever was necessary for building the Mishkan could not be done on Shabbos, and so we are being told, indirectly, what the Torah forbade on Shabbos.

Tosafos (Shabbos 94a s.v. Rabbi Shimon) explains melacha she’einah tzericha legufah that, not only do we derive the definitions of the 39 melachos from the construction of the Mishkan, but that the prohibition min haTorah includes only activities whose purpose is similar to the purpose for which this melacha activity was performed in the Mishkan. Here are some examples to clarify what Tosafos means.

One of the 39 melachos of Shabbos is gozeiz, shearing, which includes any act that removes something from a living creature. The construction of the Mishkan required obtaining wool, which requires shearing it off sheep; this is a classic example of gozeiz. In this instance, the purpose of the shearing is to obtain usable material that is removed from the creature.

The question we will now ask is whether the melacha is violated min haTorah when gozeiz is performed not for the purpose of using the material that is removed. For example, when someone receives a haircut or clips his nails, he is removing something from a living creature, but he is not interested in the hair (with the exception of someone harvesting hair to sell for wig manufacture) or the nails. Is having a haircut or trimming nails prohibited min haTorah on Shabbos under the heading of gozeiz, or is it prohibited only miderabbanan, and the Torah prohibition of gozeiz is violated only when someone “shears” something that is usable, such as wool or hair suitable for wig manufacture?

According to Tosafos, this is the question of melacha she’einah tzericha legufah, which, the Gemara teaches, is the subject of a dispute among tanna’im. According to Rabbi Shimon, trimming hair or cutting nails is prohibited only as a rabbinic prohibition, since we do not use the trimmed items (Tosafos, Shabbos 94b s.v. aval). The disputing tanna, Rabbi Yehudah, rules that someone who performs a melacha she’einah tzericha legufah on Shabbos is culpable min haTorah. In his opinion, the fact that we do not use the trimmed nails or hair is irrelevant in defining the act as a melacha, as long as the results of the melacha are positive. In this instance, because of asthetic reasons the trimmed nails or hair is a desired outcome. Therefore, these acts violate Shabbos min haTorah, notwithstanding that one’s purpose was qualitatively different from the goal of this melacha in the construction of the Mishkan.

Here is another example of melacha she’einah tzericha legufah: Digging a hole in the ground only because someone needs the earth, but he has no need for the hole. The plowing performed in the building of the Mishkan was in order to plant, whereas digging a hole to obtain earth is qualitatively different from why this melacha was performed for the purpose of building the Mishkan. Therefore, this act qualifies as a melacha she’einah tzericha legufah, and it is exempt from desecrating Shabbos min haTorah according to Rabbi Shimon.

Among the rishonim, we find many other approaches to explain the concept of melacha she’einah tzericha legufah, but for clarity’s sake, we will limit our discussion to the approach of Tosafos.

Returning to the mekosheish

What does the purpose for which we do a melacha have to do with the mekosheish?

Based on his analysis of a midrash, the Maharsha (Commentary to Bava Basra 119a) explains that the mekosheish’s goal was not to perform the melacha, but to become an educational tool.The punishment he would receive for violating Shabbos would teach the Bnei Yisroel the stringency of observing Shabbos. Since he was not interested in the results of his melacha activities, they had the halachic category of melacha she’einah tzericha legufah. According to the authorities who rule that melacha she’einah tzericha legufah is not a Torah violation, the mekosheish never desecrated Shabbos, but instead was creating greater respect for Shabbos. Thus, the answer to the question posed to Rabbi Akiva — how could you reveal negative information about a tzadik — is that the mekosheish was not doing an aveirah, but a mitzvah!

We should note that, even if Tzelafchad was permitted to perform the specific melacha activity that he did, we would not be permitted to perform this activity because it is now prohibited by a rabbinic injunction. This prohibition had not yet been created in the days of Tzelafchad.

Why was he punished?

If, according to the Maharsha, Tzelafchad had technically not violated Shabbos, why was he punished by the beis din as if he had?

The Maharsha explains that since his thoughts of educating Bnei Yisroel were not known, the witnesses and the beis din dealt only with his actions, which is exactly what Tzelafchad wanted.

Thus, we can answer our opening question: “I was once told that the mekosheish was a frum Jew who did not really desecrate Shabbos. What does this mean?”

The answer is that, according to the approach suggested by the Maharsha, the mekosheish was a good guy, whose goal was to strengthen the commitment of Klal Yisroel to the observance of Shabbos, a mission that he accomplished. According to this suggestion, we can readily understand how he fathered such exemplary daughters.

Conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melacha, which implies purpose and accomplishment. On Shabbos, we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Shemos 20:11). Understanding that the goal of our actions affects whether a melacha activity has been performed demonstrates even more so the concepts of purpose and accomplishment.