Devarim 5:6-18 (Va-ethanan) - The Decalogue in Shemot 20 and Devarim 5

Devarim 5:6-18 record the Decalogue, but the version in Devarim 5:6-18 differs in some respects from the first version of the Decalogue, Shemot 20:1-14.

Before examining the differences in the two versions of the Decalogue, we need to discuss the general relationship between the two versions of the Decalogue. One possibility is that in Devarim, Moshe was repeating the exact words said by G-d at Mount Sinai by the first Decalogue. This would seem to be Rashi's approach. He explains that Devarim 5:11 records that one is to observe the Shabbat, while Shemot 20:8 records that one is to remember the Shabbat since the words "observe" and "remember" were both said simultaneously at Mount Sinai. The same idea is also implicit in Rashi's comments with regard to Devarim 5:11,15, which record the commandment to keep the Shabbat and to honor one's parents. These verses record that in Devarim, Moshe told the people that they are to follow the laws "as commanded by G-d." If this phrase was said on Mount Sinai, then what can be the reference to the word "commanded" (in the past) since when were the laws commanded before Mount Sinai? Rashi explains that the laws of Shabbat and honoring one's parents were told to the people at Mara before the Decalogue. Thus, during the Decalogue at Mount Sinai, God could have said the words "as commanded."

The second possibility to understanding the relationship between the two versions of the Decalogue is that in Devarim, Moshe was not trying to repeat the exact words of G-d at Mount Sinai but was trying to explain the Decalogue. According to this approach, Devarim 5:19 means that G-d spoke these ideas but not these exact words. This is the approach of Ibn Ezra (on 5:5), Rashbam (on 5:11), Hizkuni (on 5:18) and Or ha-Chayyim (on 5:19). One proof for the second approach is that if both observe and remember were said by G-d in reference to the Shabbat, then why were they not included in both versions of the Decalogue? With the second approach, one can understand why the second version of the Decalogue is not exactly the same as the first version since Moshe made changes, but then the question is why would Moshe make changes to the Decalogue? We will follow this second approach, and try to explain the differences.

The first difference between the two versions of the Decalogue with regard to the Shabbat was already mentioned, that in Shemot 20:8, the wording is that one is to remember, zachor, the Shabbat, while Devarim 5:11 records that one is to observe, shamor, the Shabbat. As mentioned above, one answer is that really both words were said by G-d simultaneously at Mount Sinai. Ibn Ezra in his introduction to the Decalogue of Shemot asks numerous questions on this idea. Why were both words not recorded in both Shemot 20 and Devarim 5? Why would G-d speak simultaneously? Why did the Torah not record this great miracle of speech and hearing?

Ibn Ezra (on Shemot 20:1, also see comments on Devarim 5:5) argues that the word remember, zachor includes the idea of observe, shamor, that one remembers the Shabbat each day in order to protect one from doing work on the Shabbat. He claims that when the people heard the word remember, zachor, they understood that it meant the same as observe, shamor, which is like they were said simultaneously. The idea is that the words, zachor and shamor, have similar meanings even though we translate them differently. In fact, as pointed out by Hizkuni (on 5:11) from Bereshit 37:11 we see that the two words have the same meaning in the Torah. Bereshit 37:11 records that Yaakov shamor the dreams of Yosef, and the meaning is that Yaakov remembered the dreams of Yosef. Luzzatto (on 5:12) adds that the word shamor in 16:1 also has the connotation of remember the month of Aviv. (See also Rashi on Devarim 12:28.) 

Yet, even if the words shamor and zachor are synonyms, still why did Moshe switch from zachor to shamor?  A possible answer is that in the Decalogue of Devarim, Moshe not only refers to the Decalogue at Mount Sinai, but also to other references to the Shabbat in the Torah. Thus, by using the word shamor, Moshe was also incorporating the discussion of the Shabbat in Shemot 31:12-17, where the word shamor figures prominently (31:13,14,16).

The second difference between the two versions of the Decalogue with regard to the Shabbat is that as mentioned above, Devarim 5:11 records the word that "G-d commanded you" but these words were not mentioned in the first version of the Decalogue. Rashbam (on 5:11, also see Ibn Ezra on 5:5) explains that in Devarim, Moshe was referring to the first Decalogue. Moshe was saying observe the Shabbat as G-d had commanded you by the first Decalogue. This phrase "commanded" also occurs by the commandment to honor one's parents. Rashbam (on 5:11, Torah Chayyim version) notes that the sayings by the Shabbat and honoring one' parents are the only positive commandments in the Decalogue, and hence only by these commandments was it appropriate for Moshe to refer back to the first Decalogue by saying as you were commanded.

The third difference between the two versions of the Decalogue with regard to the Shabbat is that Shemot 20:9 records that "you, your children, your slaves, your animals and the stranger" are to rest on the Shabbat, while Devarim 5:13 adds "the cattle and the donkey and all your animals" to the list. Moshe made these additions since he was incorporating Shemot 23:12, which specifies that these animals are to rest on the Shabbat, within the laws of Shabbat of the Decalogue. Again, in the Decalogue of Devarim, Moshe not only refers to the Decalogue at Mount Sinai, but also to other references to the Shabbat in the Torah.

The last difference between the two versions of the Decalogue with regard to the Shabbat is the rationale for the Shabbat. Shemot 20:11 explains that the reason for the Shabbat is that G-d created the world and rested on the seventh day of creation. On the other hand, Devarim 5:13,14 record that the Shabbat is in order that your slaves will rest since one should remember the slavery in Egypt and that G-d redeemed us. This double rationale has led many (for example, Rambam, Moreh 2:31, also in Kiddush) to postulate that there are two reasons for the Shabbat, to remember creation and to remember the Exodus from Egypt.

Ramban (on 5:13) rejects this idea. He questions how resting on Shabbat can lead one to remember the Exodus from Egypt. He claims that really there is only one rationale for the Shabbat, the creation of the world, and the reference to the Exodus is only to help one believe in the creation of the world. He explains that if one has a difficulty in believing that G-d created the world, then he can learn from the Exodus that G-d intervenes in the world.

Ibn Ezra (on 5:5) seems to agree that the reason for Shabbat is the creation of the world, but suggests a different reason for the reference to the Exodus in Devarim. Ibn Ezra argues that the reference to the Exodus is a motive statement for why one should let one's slave rest on Shabbat. This is similar to Devarim 15:15, 24:18, and 24:22, that in each case the law is related to the Exodus but the Exodus is not the reason for the law, but a reason why one should obey the law. The idea is that not all rationales of the laws are sufficient to motivate a person to follow the law. Sometimes a secondary reason is needed for why one should follow the law independent of the true reason of the law. In this case, Shabbat is due to the fact that G-d rested as part of the creation of the earth. However, people might still be tempted to have their slaves do work for them on Shabbat, and thus Moshe reminds them that their slaves must rest because they should remember that they were also once slaves. (Note, this fear of forgetting that the people were once slaves was presumably greater with the second generation who did not grow up as slaves than the first generation who had vivid memories of slavery.)

Finally, another possibility is again that Moshe was combining the Decalogue in Shemot with the laws of Shabbat in Shemot 23:12, which state that the purpose of Shabbat was that one's animals and slaves would rest. This would be a second and possibly secondary reason for Shabbat (see Shemot 31:17), and once this idea of rest was mentioned then Moshe added the motive sentence of remembering that you were once slaves (5:14) as explained by the Ibn Ezra.

Another difference between the Decalogues is that by the fifth saying, Devarim 5:16 has the words "that it may go well with you," and these words were not included in the Decalogue in Shemot. These two phrases also appear together in Devarim 22:7, and I think the idea in both cases is to clarify the blessing of long live, that a person will have a healthy long life and not a long life filled with sickness and frailty. Note, probably the blessing of long life with regard to the fulfillment of this saying was only for this generation who lived in the desert, and then Moshe was explaining to the people that they would be granted healthy long lives and not that they would live longer but be sick.

Another difference between the Decalogue as recalled by Moshe in Devarim and what is recorded in Shemot is that in Shemot, none of the sayings begin with the word "and" while in Devarim, the seventh through tenth sayings being with the word "and," "and you are not to commit adultery, "and you are not to steal"….

Possibly, this difference is due to the difference between speech and the remembrance of past speech. The Decalogue as recorded in Shemot was a record of how G-d spoke to the people, and G-d would have spoken without using the word and, do not commit adultery, do not steal. The idea being that G-d probably paused between each of the sayings, as this is more dramatic, and then each saying would stand by itself with there being no need for the word and. However, in Devarim, when Moshe was recalling the Decalogue, he was not recreating the drama of the Decalogue, and he would have spoken without pausing, which meant using the word and to connect the different sayings.

Another difference between the Decalogue in Shemot and Devarim is with regard to the ninth saying. Shemot 20:13 records, "You are not to be a lying witness" while in Devarim Moshe told the people, "you are not to be a vain witness, 5:17." Ibn Ezra (on 5:5) writes that one should not be bothered by the two different words, lying and vain, since they have the same meaning. Hoffmann (on 5:17) explains that a vain witness is where the witness testifies about a fact that he did not see, which means that he is similar to a false or lying witness.

I would add that maybe Moshe was incorporating the prohibition recorded in Shemot 23:1, "you are not to take up an empty rumor" (Fox translation, 1995, p. 383). If one testifies about something that one did not see and if one is not consciously lying, then one is testifying based on a rumor. Once this testimony is forbidden, then certainly lying is prohibited. Thus, maybe in Devarim Moshe used the word vain to refer to both the prohibition of a lying witness (Shemot 20:13) and of testifying based on rumors (Shemot 23:1). However, in the Decalogue in Shemot, G-d spoke to the people about moral principles and thus G-d said do not be a lying witness, knowing that the idea about a vain witness would later be told to the people.

Another difference between the Decalogue in Shemot and in Devarim is with regard to the tenth saying. Shemot 20:14 records that one should not covet your neighbor's house, and then it specifies that one should not covet, your neighbor's wife, servants, animals or anything that your neighbor possess. On the other hand, Devarim 5:18, records that one should not crave your neighbor's wife, and one should not covet your neighbor's house, field, servants, animals and anything your neighbor possess.

There are three differences between these verses. One, Devarim 5:18 refers to both craving, tit'avveh, and coveting, hamad, while Shemot 20:14 only uses the word coveting. Two, in Shemot 20:14, the term house is used first and the neighbor's wife is included within the second clause with all the particulars. However, in Devarim 5:18, the neighbor's wife is mentioned in the first clause separate from the other items, and the neighbor's house is mentioned in the second clause. Three, Devarim 5:18 refers to the neighbor's field, while this is absent in Shemot 20:14.

With regard to the first question, many commentators attempt to find differences between the two words, craving and coveting, which means Moshe was adding a new prohibition. I think it is preferable to follow Rashi (on 5:18) that the two words have the same meaning. With regard to the second question, Hizkuni (on 5:18) explains that in Shemot, G-d was following the practices of a wise person, who first acquires a home, then a wife and then servants. However, in Devarim, Moshe was following the order of what young men desire, first a wife, then a house and then servants. With regard to the third question, Hoffmann (on 5:18) explains that fields were mentioned because the people were about to enter the land of Israel, but I doubt this since in Shemot, the people also thought they were about to enter the land of Israel.

My guess is that in Shemot the reference to a neighbor's house means household, which includes both the neighbor's wife and his possessions (see Tigay, 1996, p. 72). Thus, in Shemot, the Torah was first stating the general prohibition and afterwards the particulars. However, in Devarim, Moshe was again incorporating events that happened after the Decalogue when he was recalling the Decalogue. In the desert, the people had committed a sin of wrongful desiring, when they desired meat and other of foods from Egypt, and Bemidbar 11:33 records that the place where this sin occurred was called Kivrot Ha-taava, see also Bemidbar 11:4. This name refers to the word craving, tit'avveh, used by Moshe when recalling the Decalogue. Maybe, Moshe changed the word from covet to crave, to remind the people of their sin of wrongful desiring in Kivrot Ha-taava. Once Moshe made this change, then he had to remove the wife from the particulars, since the sin at Kivrot Ha-taava did not involve sexual desires. Thus, Moshe stated do not covet with regard to another man's wife, as recorded in Shemot, but when he wanted to recall prohibited desire for a neighbor's possessions, then he used the word crave, tit'avveh.

With regard to the third question, the inclusion of fields in the tenth prohibition, this also relates to a development in the Torah after the Decalogue, and depends on the definition of the prohibition of coveting, see our discussion on Shemot 20:14, "All in the mind?"

One possible definition is that the prohibition of coveting is when one desires an item that is not sold in the market. Based on this definition, maybe land was not included in the prohibition of coveting in Shemot 20:14 since in principle all land is subject to being sold. However, in Vayikra 25, the people were told that each family was to receive a plot of land which would remain with the family forever. This meant that land was no longer an item that could be permanently sold in the market, and then one could not covet land as recorded in Devarim 5:18.

A different possibility is based on the Rambam's (Laws of stealing and loss, 1:9) definition of coveting, that a person cannot pressure another person to sell something even if in the end the person agrees to the sale. With this idea, land was included in the prohibition in Shemot 20:14 that a person cannot pressure another person to sell land, but it was not specified. In Devarim 5:18, Moshe specified land since Vayikra 25:14-18 records the prohibition of ona'ah, which is taking advantage of a person's willingness to sell or buy land.  If a person buys the land for less than the going price, then most likely, the buyer is pressuring the seller to sell as he/she knows that the seller is desperate to sell. Thus, Moshe added the reference to coveting lands since this could also include the prohibition of ona'ah.

Bibliography:

Fox, Everett, 1995, The Five Books of Moses: A new translation, New York: Schocken Books.

Tigay, Jeffrey H., 1978, 1996, The JPS Torah Commentary: Deuteronomy, Philadelphia: The Jewish Publication Society.

The tenth of Av

When do the prohibitions relating to the mourning for the destruction of the Bet ha-Mikdash end?

The Mishnah (Ta'anit 4:7) records that during the week of Tisha B'av, one is forbidden to wash one's clothing or to cut one's hair, but one is permitted to do these actions on Thursday out of respect for Shabbat. This implies that the restrictions are no longer in effect on either the eighth of Av when Tisha B'av is on a Friday, which cannot occur now according to our calendar, or on the tenth of Av, when Tisha B’av is on the other days of the week.

The Talmud (Ta'anit 29b) quotes three opinions as to when the restrictions of mourning for Tisha B’av applied. One, R. Yehuda maintains that one is not to cut one's hair or wash clothing the entire month of Av, and also Rav Papa states that the prohibition of going to court with a non-Jew applies for the whole month of Av. Two, R. Meir maintains that the prohibition are from Rosh Chodesh Av until (including) Tisha B'av, and three, R. Shimon ben Gamliel states the prohibitions are for the week of Tisha B'av, which appears to be the same view as the Mishnah. The Talmud (Ta'anit 30a) quotes Rava that we follow R. Meir and R. Shimon ben Gamliel to be lenient, which means the prohibitions only begin during the week of Tisha B'av and they end immediately after the fast. The principle seems to be that the mourning of Tisha B'av is secondary to Shabbat, and hence there is no mourning that extends into Shabbat.

The Rambam (Laws of fasting, 5:6) and the Shulchan Arukh (Orah Chayyim, 551:3,4) follow Rava, and rule that the prohibitions of washing clothes and cutting hair is from Sunday of the week of Tisha B'av until the end of Tisha B'av. The Rambam makes no reference to the 10th of Av, and it seems that for him that it was just a regular day. However, another tradition developed amongst Ashkenazim.

The view that the 10th day of Av is a day of mourning is most strongly expressed in the Yerushalmi (Ta'anit 4:6), which records that R. Yehoshua b. Levi and R. Avin fasted on both the 9th and the 10th of Av, and that R. Levi fasted on the 9th and the night of the 10th of Av. Furthermore, the Yerushalmi (also in Bavli, Megillah 5b) quotes that Rebbi (the first Yehuda ha-Nasi or his grandson?) wanted to uproot Tisha B'av. Tosafot (Megillah 5b, u-bikesh ka-pakor) is bothered by such a thought, and they suggest that either Rebbi wanted to remove some of the prohibitions of Tisha B'av or he wanted to move the fast day to the 10th of Av instead of the 9th of Av. Tosafot brings a proof for this latter possibility since the Talmud (Bavli, Ta'anit 29a) quotes R. Yochanon (I believe the Amora, 180-279, Galilee, and not R. Yochanon ben Zakkai) that had he been alive in the generation that established the fast day of Tisha B'av he would have picked the tenth instead of the ninth. One interesting common denominator of the opinions that desire to commemorate the 10th of Av is that they all come from people in Israel and not Bavel.

What is the significance of the 10th of Av? With regard to the first Bet ha-Mikdash, Kings II 25:8,9 records that it was destroyed on the 7th of Av, but the book of Jeremiah 52:10 records that it was destroyed on the 10th of Av. The Talmud (Ta’anit 29a) reconciles these opinions that on the seventh the Babylonians entered the sanctuary, began destroying the Bet ha-Mikdash and the destruction ended on the 10th. Thus, it appears that the observance of the 10th of Av as a fast day is due to the fact that the Bet ha-Mikdash was also destroyed on the 10th. Yet, if the basis for observing the 10th day as a day of mourning for the Bet ha-Mikdash is from the destruction of the first Bet ha-Mikdash, then one would not have expected different customs from people in Israel than in Bavel.

Maybe instead it was the destruction of the second Bet ha-Mikdash that prompted the view that the 10th of Av should also be a day of mourning for the destruction of the Bet ha-Mikdash. The Talmud (Bavli, Ta'anit 29a) asks how do we know that the second Bet ha-Mikdash was destroyed on the 9th of Av and it answers that this was an appropriate day since the 9th of Av is an ill-fated day. This is a non-definitive answer. A different source is that Josephus (The Jewish War, 6, 4, 5) writes that the second Bet ha-Mikdash was destroyed on the 10th of Av. Could it be that there was a tradition in Israel that believed that really the second Bet ha-Mikdash was destroyed on the 10th of Av and this was the reason for viewing the day as a day of mourning? It is interesting that Encyclopedia Judaica (1971, 10:147) writes with regard to R. Yochanon that he transmitted much historical information from the period of the second Bet ha-Mikdash including "many traditions concerning the destruction of the second Bet ha-Mikdash."

The opinions of the Yerushalmi that view the 10th of Av as a day of mourning continued in the Middle Ages in Ashkenazi Jewry. The Maharil (1365-1427, Germany, quoted in the Bet Yosef Orah Chayyim 558) writes that when Tisha B'av is moved from Shabbat to Sunday, then those who fast two days, the 9th and the 10th of Av, do not have to fast on the 11th of Av (Monday), but they should not eat meat or drink wine on Sunday night, the night following Tisha B'av. We see that some people fasted two days as recorded in the Yerushalmi, and this is not so surprising due to the close connection between the customs of Israel of the first millennium to Medieval Ashkenazi Jewry. To the best of my knowledge this custom is no longer adhered to, but at least until the 17th century there is evidence that some people maintained the custom because the Magen Avraham (1637-1683, 558:2) quotes the Shelah (1565-1630) that those people who fast on the 10th of Av should read Eichah!

The second stage of the development of the custom of mourning on the 10th day of Av is from the Tur (1275-1340, Germany and Spain, Orah Chayyim 558). The Tur writes that we are too weak to fast for two consecutive days, but in order to have some measure of affliction on the 10th of Av, one should abstain from eating meat and drinking wine on the 10th of Av. The Shulchan Arukh (1488, Spain – 1575, Safet, 558:1) accepted the opinion of the Tur, which he calls a correct custom. The Rama (1525 or 1530-1572) also follows the Tur, but he writes that the restriction on eating meat and drinking wine is only until midday of the 10th, unless Tisha B'av is pushed off to the 10th and then one should just not eat meat or drink wine on the night following Tisha B'av. This ruling lessens the prohibition as recorded by the Tur and the Shulchan Arukh since it reduces the time that the prohibition is applicable. The Taz (1586-1667, 558:1) writes that this custom (not eating meat until midday or not eating meat at night?) had just been accepted forty years ago prior to when he wrote his comments, but before that people ate meat on the night following Tisha B'av. Thus, it appears that until the 17th century, the accepted practice was that people washed their clothes, cut their hairs and ate meat immediately after the fast, but a few people did not eat meat on the 10th of Av.

The final and third stage with regard to the development of the 10th day as a day of mourning is that R. Solomon Luria (1510-1574) ruled that the restrictions of not bathing, cutting one's hair or washing clothes extended to the tenth of Av just like custom of not eating meat. The Taz (above) notes that book of Minhagim (R. Isaac Tirna (?), 15th century) ruled that the restrictions were not applicable to the 10th of Av. Also, the Mishnah Brurah (1838-1933) in his commentary Biur Halacha (558) writes that it seems to him that these restrictions should not apply to the 10th of Av, but since they have already been accepted, he does not want to rule against other authorities who accepted these restrictions. Thus, the restrictions against cutting one's hair and washing one's clothes on the 10th of Av were accepted by the Ashkenazim, see Aruch Hashulchan (1829-1908, 558:2) and Mishnah Brurah (558:3). With regard to Sefardim, R. Chayyim David Ha-Levi ( 1924-1998, Kitzur Shulchan Arukh 98:6) writes that some people do not eat meat all day on the tenth, some do not eat until midday and some eat immediately after the fast, but he makes no mention of any prohibitions of not cutting one's hair or washing one's clothes on the tenth of Av.

When Tisha B'av is on Thursday, the Magen Avraham (558:1) writes that it is obvious that one can wash clothes and have haircuts on the tenth out of respect for Shabbat. The question is does the Magen Avraham refer to Friday morning or to Thursday night after the fast? Tosafot (Ta'anit 30a, Travayhu) writes that when Tisha B'av is on Thursday, it is permitted to wash clothing and have haircuts after midday on Tisha B'av, and a person should not wait until Friday since one needs to prepare for Shabbat. This Tosafot is quite surprising, but it just follows the rule of the Mishnah and the Talmud that Shabbat takes precedence over Tisha B'av. While I am unaware of anybody today who relies on this Tosafot with regard to Tisha B'av itself, but from Tosafot we see that immediately after the fast one can wash clothing and have haircuts when Tisha B'av is on Thursday, see R. Shimon Eider, 1978, p. 32. However, one would not be permitted to eat meat on the tenth of Av since that it not needed for the preparations for Shabbat.

In conclusion, we see that initially the people who mourned on the 10th of Av viewed it as a continuation of the mourning for Tisha B'av, but then the mourning on the day changed from being comparable to Tisha B'av to being comparable to the days prior to Tisha B'av, where one cannot eat meat, nor drink wine, nor wash clothes, etc. This means that nowadays the mourning on the 10th of Av is anticlimactic after the fasting on Tisha B'av.

Bibliography:

Eider, Shimon, (d. 2007) 1978, A summary of halachos of the three weeks, Lakewood, NJ.

Devarim 1:9-18 - The appointment of judges when the Jewish people were in the desert

The book of Devarim consists mostly of Moshe speaking to the Jewish people in the 40th year the people were in the desert, and Devarim 1:9-18 records that one thing that Moshe spoke about was his recollection of the appointment of judges when the people first came to the desert. The appointment of judges is also recorded in Shemot 18:13-26, and there are several differences between the description of this process of appointing the judges as recorded in Shemot 18:13-26 with Moshe’s recollection of this process in Devarim 1:9-18.

The major difference between these two descriptions of the process of appointing judges is that in Devarim 1:9-18, the aspects of the judicial system that Moshe stresses is that a judicial system punishes people for their misdeeds as a type of warning to the people not to sin again by refusing to enter the land of Israel. On the other hand, in Shemot 18:13-27, the stress is on the need for a judicial system, and not on the punitive aspects of the system. This distinction can be discerned by analyzing the differences between the sections. In addition, while Shemot 18:13-23 records Yitro’s suggestions concerning the judicial system, which was in the third month of the first year of the people’s stay in the desert, the actual appointment of the judges was only at later time, see our discussion on Shemot 18:13-27, “Yitro’s visit to Moshe and the need for a judicial system.” When Moshe implemented the system, he made several changes from Yitro’s suggestions.

One difference between Shemot 18:13-27 and Devarim 1:9-18 is that in Shemot 18:13-27 it is Yitro who suggested to Moshe to establish a legal system while Yitro is not mentioned in Devarim 1:9-18. Why was Yitro's role excluded in Devarim 1:9-18? Yitro was included in Shemot 18:13-27 since he was a foreigner, and the fact that he knew of how a judicial system should function showed that the existence of a legal system is a universal need. However, in Devarim 1:9-18, Moshe wanted to recall the punitive role of the judicial system, and was not concerned with who suggested the establishment of a judicial system. Thus, the fact that Yitro suggested the system could be excluded from the recollection of the event. In addition, it could be that Moshe did not mention Yitro’s name in Devarim since Moshe had made several changes when he implemented the judicial system in the desert.

A second difference between the sections is that Shemot 18:13-27 records that prior to the appointment of the judges, Moshe sat all day in judgment but without complaining, while Devarim 1:12 records that Moshe complained that the work was too difficult due to the people's fights. Why was this difficulty not mentioned in Shemot 18? The answer is that in Shemot 18, the objective was to show how laws are necessary which is shown by the numerous conflicts that existed amongst the people. The important fact is that Moshe had to sit all day, not how difficult the job was for Moshe. However, in Devarim 1:9-18, Moshe recalls the fights of the people as a warning for them to behave. Just as the people should not fight amongst themselves, they should not fight with G-d by refusing to enter the land of Israel. In addition, in Devarim 1:12 when Moshe recollected the complaints of the people this was referring to the time after Yitro’s advice and prior to the implementation of the system, as we know from Bemidbar 11:11-15 that the complaints of the people wore him down by the second year of the people’s stay in the desert.

A third difference between the sections is that Devarim 1:13-15 records that the people had a role in selecting the judges, while Shemot 18:25 records that Moshe seems to chosen the judges by himself. Presumably, Moshe received help in selecting the judges, and this was a change he made to Yitro’s suggestions, but why was this information excluded from Shemot 18? Again, in Shemot 18, the stress is on the existence of the conflicts, while the discussion about the judges themselves can be minimized. However, in Devarim 1:9-18, Moshe was also recalling the implementation of the judicial system, which had involved the people. Moshe’s recollection of the people’s involvement in the choosing the judges might also have been a message to the people to remind them that they accepted the idea of the judicial system, that people are to be held accountable for their actions. Moshe was then hinting to the people that as you accept this idea on the human plane so too this idea applies on the divine plane.

A fourth difference between the sections is that the qualification of the judges in Devarim 1:15 is their intellectual ability, while Shemot 18:21 records Yitro’s suggestion that the qualification of the judges is that they should be morally upright. These qualifications are not contradictory because judges should have both characteristics, and the need for intellectual abilities is one of the changes that Moshe made to Yitro’s suggestions when he implemented the system, that he appointed judges who he thought were both honest and smart. Maybe Yitro only mentioned the need for honest judges since he was worried that people might think that Moshe was choosing cronies. Furthermore, Moshe did not have to recall that the judges who were chosen were thought to be honest since in Devarim 1:17 he recalled that he told the judges to judge honestly.

A fifth difference between the sections is that Devarim 1:17,18 records that Moshe recalled that he instructed the judges to judge each individual on the merits of the case, while in Shemot 18 no instructions are given to the judges except to bring hard cases to Moses. Why were these instructions mentioned in Devarim 1:17,18 not recorded in Shemot 18? Again, the point in Shemot 18 is not how the system functioned, just that there is a need for a legal system. Thus, Shemot 18:26 can simply state, that the judges judged. However, in Devarim 1, the idea is to show how a legal system functions, and thus, the specific instructions of how to judge shows that the system is functioning. In addition, the judicial rules mentioned in Devarim 1:17,18 correspond to the laws mentioned in Vayikra 19:15, and then Moshe can refer to these rules in Devarim since in the 40th year these rules were known by the people.

A sixth difference between the sections is that Devarim 1:15 refers to shotrim but this term does not appear in Shemot 18. Shotrim appear to be the enforcers of the legal system. Again, in Shemot 18, they could be excluded because the enforcement of the judicial decision was not the important message at that point. However, in Devarim 1, the fact that shotrim are mentioned demonstrates that with a judicial system people are punished for their misdeeds. In addition, this was one of the changes that Moshe added when he implemented the judicial system that he added the shotrim.

Consequently, the two recordings of the establishment of a judicial system have two different purposes. In Shemot 18, the message is that a legal system is needed, but the performance of the system was not crucial at that time. Instead, the message is that there is a need for laws as prelude to the Decalogue and the laws of the covenant, the ensuing chapters in the book of Shemot. On the other hand, in Devarim 1, the message was that a judicial system punishes people for their sins, and thus, it was important for the system to function since only a functioning judicial system can punish people. This message would serve as a warning for the people not to sin by refusing to enter the land of Israel since they would be punished for their actions if they sinned again.

Bemidbar 35:28 (Mase'ei) - Something unpredictable

Bemidbar 35:28 records that if a person kills accidently, then he must remain in the city of refuge until the high priest dies. What is the connection between the death of the high priest and the permission for the accidental killer to leave the city of refuge?

Rambam (Moreh 3:40) explains that the death of the high priest will abate the desire of the relatives of the victim for revenge. This idea follows the approach that the city of refuge was an asylum.

A popular approach (see Rashi and Luzzatto on 35:25) is that the death of the high priest serves as a form of atonement for the accidental murderer. Just as the actions of the high priest, as for example on Yom Kippur, bring atonement to people, so too his death brings atonement for the accidental murderer. This approach follows the idea that the city of refuge was for the accidental murderer to attain atonement.

Seforno suggests that as the responsibility for the accidental murder differs in each case due to the "degree of accident" involved in the particular case, so then the stay in the city of refuge also differs. This leaves the judgment to G-d to ensure that those accidental murderers who are relatively guiltier will stay in the city of refuge for longer time periods. This approach follows the idea that the city of refuge is to punish the accidental murderer.

My guess is that the conditioning of the release of the accidental killer from the city of refuge upon the death of the high priest is to make the accidental killer's stay in the city of refuge indeterminate since who knows how long the high priest will live. This indeterminacy matches the accidental nature of the murder since both are unpredictable. The "punishment" for killing accidentally then follows the usual formula of being a measure for measure. With this idea, the death of the high priest is ad hoc. There is a need for some unpredictable event to end the period of asylum, and the death of the high priest serves this purpose. As discussed in our commentary on Shemot 2:11-23 "An accident," (http://www.lobashamayim.blogspot.co.il/2010/01/shemot-216-23-shemot-moshes-flight.htmlI believe that the death of Pharaoh served the same purpose to enable Moshe to return to Egypt.

Bemidbar 26:1-51 (Pinhas) - Counting the Jewish people towards the end of their fortieth year in the desert

Bemidbar 26:1 records that after the plague due to the sin of Baal Peor ended, G-d commanded Moshe and Elazar to count the people. 26:1-51 records the census of the people at the end of their 40 years stay in the desert, and it is interesting to compare it with the count in the 2nd year in the desert. First, the total number of people counted is very similar. In the 1st count, there were 603,550 men over the age of 20, 1:46, while in the 2nd count there were 601,730, men over the age of 20, 26:51. Thus after 40 years of living in a protected environment, the population actually declined. While 24,000 people died in the plague immediately prior to the count, even including these people the growth would only have been a growth of 22,180 men, or 3.6%. Why was there a need to count the Jewish people at this time?

Rashi (on 25:19) suggests two reasons for the count. One, just as a shepherd counts his flock after the flock is attacked, so too G-d counted the people after the plague recorded in 25:9. This is a difficult answer since G-d would not need to count the people to know how many people survived the plague. Rashi’s second answer is that the count in chapter 26 parallels the count of the people in the beginning of the book of Bemidbar. Again, using an analogy from a shepherd, the people were counted when they were entrusted to Moshe when they left Egypt, so too when Moshe was about to die, he handed them back with a number. This answer is appealing as it connects this count with the earlier count, but why is the census recorded in chapter 26?

Moskovitz (1988, p. 320) quotes two other reasons. One reason is that the census was for mustering the troops since the people were going into the land of Israel where they would have to fight. However, by the war with Midyan (chapter 31) the census was not relevant since a thousand people from each tribe went to fight, 31:4. Also, there is no mention that a census was taken prior to the wars by Sihon and Og. A second reason is that the count was to be able to divide the land of Israel evenly amongst the people. Thus, immediately after the count, 26:52-56 record how the land was to be parceled out. Yet, it is possible that this division of the land was a result of the census but was not the reason for the census. Thus, the Ramban (on 26:57) is hard pressed to explain why the Levites were counted since they did not receive any land.

Dennis Olson (1985) suggests a fifth reason that the census has a literary purpose to unify the book of Bemidbar. He argues that the censuses in chapters 1 and 26 divide the book of Bemidbar into two units, chapters 1-25 refer to the generation who left Egypt and chapters 26-36 refer to the new generation who would enter the land of Israel. The censuses then form the structure of the book, and the census of chapter 26 would signal that the old generation has died out and the generation has been born. Thus, he writes the name of the book, Numbers, is very appropriate. Olsen notes that with this idea the two censuses in the book of Bemidbar function similar to the toledot language in the book of Bereshit, that both provide the structure to the book. (For a discussion of the toledot structure in the book of Bereshit, see our discussion, “Introduction to the book of Bereshit.”)

There is only one toledot section in the Torah not in the book of Bereshit and it occurs in Bemidbar 3:1, the toledot of Aharon and Moshe, immediately after the count of the people. Olsen argues that the last toledot of Bereshit, 37:2, the toledot of Yaakov continue for the remainder of the Torah, and Bemidbar 3:1 introduces another toledot section of Aharon and Moshe. This last point seems difficult since in Bereshit each toledot section ends with a genealogy, or the death of cenral figure in the section, and then either Bereshit 46, which records the genealogy of Yaakov’s family, or Bereshit 50, which records  the death of Yosef, ends the toledot section from Bereshit 37:1.

Yet, the connection Olsen makes between the census and the toledot framework is interesting. Maybe a toledot section cannot exist when dealing with the details of an entire nation since the tracking of the genealogy is too lengthy. Thus, Bemidbar 3:1 just uses the toledot section with regard to Moshe and Aharon because that is one small family. However, the conjunction of the toledot of Bemidbar 3:1 with the census in chapters 1 and 2 informs us that the toledot and census serve similar purposes as suggested by Olsen. Both the toledot sections of Bereshit and the two censuses mark the movement from one generation to the next. In the other three books of the Torah, there is no movement of generations, so there is no need either for the toledot language or a census. 

A sixth way to understand the count in Bemidbar chapter 26 is to examine how it differs from the count in Bemidbar chapter one. Bemidbar chapter one just lists the population of each tribe, while Bemidbar chapter 26 also lists the family branches and includes various historical information. Olsen (p. 87) explains that this change “expresses the further development of the tribal families into a new generation which has now branched into various sub-clans.” Yet, the various sub-clans existed even during the first census. Instead, the sub-clans make the count of Bemidbar 26 parallel to the count of Bereshit 46, which occurred before Yaakov’s family went into Egypt. In Bereshit 46 there are seventy individuals, and in Bemidbar 26 there are seventy clans. In addition, Bemidbar 26:19,46 refer to individuals, Er, Onan, Serah, who are mentioned in Bereshit 46, but who were not part of any family sub-clan in the desert. The counts are even symmetric in their time frame. In Bereshit, the Jews were leaving Israel and going to Egypt, and in Bemidbar the Jews are leaving the desert and going to Israel.

Why is the count of Bemidbar 26 modeled after the count in Bereshit 46? The parallelism establishes a historical continuity between the generation about to enter the land of Israel and the people who left Israel. This is important in reference to the people's claim to the land of Israel, which is from Avraham, Yitzhak and Yaakov. Yet after all these years in Egypt, who knew if these were the descendants of Avraham? Thus, the parallelism shows that these people who are about to enter the land of Israel were the descendants of Avraham and had a right to land of Israel. Also, Avraham was told that his descendants would go into exile (Bereshit 15:13-16) and that his descendants would return to the land of Israel. The parallelism shows that the same people who went into exile are the people who have returned to the land of Israel. In addition, the count in Bereshit 46 showed how the blessing to Avraham that he would have numerous children had started to come true, that there were seventy descendants of Avraham who were part of the covenant. By modeling the count in Bemidbar 26 on Bereshit 46, we see that this blessing has continued to come true, as now there were seventy families who numbered more than 600,000 people. Furthermore, the count in Bereshit was the beginning of the journey, when the family left the land of Israel, and the count of Bemidbar 26 signals that the people are at the end of the journey.

A seventh possibility for the count of the people in Bemidbar chapter 26 is that it was due the covenant the new generation was going to make on the plains of Moav, Devarim 28:69, as there need to delineate which people are part of the covenant.  The new generation really begins from chapter 20, since from 33:38 we know that chapter 20 must be recording events in the 40th year. It is true that some people of the old generation were alive in chapter 20, but the overwhelming majority of people were from the new generation, and chapter 19 is the dividing chapter between the generations. However, the new census could not have been done in chapter 20 since it was only when the people were passing by Moav did the entire first generation die, Devarim 2:14. In addition, if the census is related to the covenant, then it should have been done in the place where the covenant was established, the plains of Moav, which means the count could not have been before 22:1, which records that the people arrived at the plains of Moav. Yet, due to the plague that killed 24,000 people at Baal Pe’or, it did not make sense to count the people before the plague since the plague occurred soon after the people arrived at the plains of Moav. Thus 26:1 stresses that the census was only done after the plague was over. Hence, maybe chapter 26 was the earliest time a census of the new generation, who were to be part of the covenant on the plains of Moav, could have taken place.

Bibliography:

Moskovitz, Yehiel Tzvi, 1988, Commentary on the book of Bemidbar, Jerusalem: Mossad Harav Kook.

Olson, Dennis, 1985, The Death of the Old and the Birth of the New, Chico, California: Scholar’s Press.

The law/ custom of not cutting one's hair in the nine days and three weeks

The Mishnah, Ta’anit 4:6 records that when the month of Av begins one is to reduce one’s happiness. The Mishnah does not specify what this entails, but the Talmud (Ta’anit 29B, Yevamot 43A) records that one should not go to court with a non-Jew in this period, one should reduce one’s business dealings, building, and planting, and one does not get married. (Are all these restrictions due to mourning for the Bet ha-Mikdash or due to the fear that the period is one of bad luck so all these enterprises will be unsuccessful?)

The Mishnah, Ta’anit 4:7, continues and writes that one is not to cut one’s hair or do laundry during the week when Tisha B’av occurs, but if Tisha B’av falls on Friday, then one can cut one’s hair and do laundry on Thursday, erev Tisha B'av, out of respect for Shabbat. (With our present day calendar, Tisha B’av cannot be on Friday, but in the time of the Mishnah, the calendar was based on witnesses, and then it was possible that Tisha B’av could be on Friday.)

This Mishnah is surprising since once the previous Mishnah stated that one reduces one’s level of happiness from the beginning of the month, why does the second Mishnah state that the prohibition to cut one’s hair and do laundry is only for the week of Tisha B’av and not from the beginning of the month? Also, if the prohibition of cutting the hair and doing laundry is for the week of Tisha B’av why does the Mishnah allow one to cut their hair and due laundry on erev Tisha B’av when Tisha B’av is on a Friday?

The laws of the Mishnah relate to two conflicting goals. One, a person is supposed to mourn in the period leading up to Tisha B’av, and two, a person is supposed to prepare for Shabbat. These goals conflict when Tisha B’av is on Friday since if the person does not cut his/ her hair or do laundry during the week, then the person will be in mourning for Tisha B’av, but will not be prepared for Shabbat. On the other hand, if a person cuts his/ her hair and does laundry on Thursday, then the person is not entering Tisha B’av in a state of mourning, but will be prepared for Shabbat. When the Mishnah rules that one can cut one’s hair and do laundry on Thursday, then the Mishnah is stating that the preparations for Shabbat take precedence over the mourning in the period leading up to Tisha B’av. This rationale explains why the prohibition to cut one’s hair and do laundry only began during the week of Tisha B’av and not from the beginning of the month since when one starts the prohibitions on the week of Tisha B’av, Sunday, one has not infringed on Shabbat. Furthermore, the idea of reducing one's level of happiness from the beginning of the month of Av and all the prohibitions listed in the Talmud that start from the beginning of the month do not infringe on the celebration of Shabbat.

The Talmud (Ta’anit 29B) quotes a Baraita that if one forgot to do one’s laundry (and apparently cut one’s hair) on Thursday when Tisha B’av falls on Friday, then one can do the laundry on Tisha B’av itself in the afternoon in order to prepare for Shabbat. (However, Abaye criticizes a person who does the laundry on Tisha B’av since he should have done it beforehand.) This Baraita extends the principle of the Mishnah with regard to the importance of Shabbat since according to the Baraita it is more important to prepare for Shabbat then to mourn for Tisha B’av, even on Tisha B’av itself! Similarly, the Talmud continues and states that if Tisha B’av falls out on Sunday, then one eats regular Shabbat meals, even though the rule of the Mishnah (Ta’anit 4:6) is that on erev Tisha B’av one limits one’s consumption. Again, the principle is that Shabbat takes precedence over the mourning for Tisha B’av.

The Talmud then quotes an argument that appears to contradict the ruling that Shabbat is more important than Tisha B’av. The Talmud quotes R. Meir that the prohibition of doing laundry and cutting one’s hair is from the beginning of the month until the fast, Rabban Shimon b. Gamaliel that the prohibition is only the week of Tisha B’av and R. Yehuda that the prohibition is for the entire month. The opinions of R. Meir and R. Yehuda imply that the prohibitions of mourning would infringe on Shabbat, but the Talmud concludes that the law is that the prohibitions are only during the week of Tisha B’av and only until Tisha B’av. Thus, the Talmud upholds the principle that Shabbat is more important that Tisha B’av. Another example of this rule that Shabbat takes precedence over Tisha B'av is the Yerushalmi (4:6) quotes that Rebbi ba bar Cohen said before R. Yosi, Rebi Aha in the name of R. Abahu, that when Tisha B'av falls of Shabbat, which means the fast is on Sunday, there is no mourning the week of Tisha B'av and the week afterwards. Thus, celebrating Shabbat removes all of the mourning leading up to Tisha B'av. 

 
The most astonishing support for the principle that Shabbat takes precedence over Tisha B’av is from Tosafot (Ta’anit, 30A, traveihu) who writes that even when Tisha B’av was on Thursday, it is permitted to cut one’s hair and do a laundry on Tisha B’av afternoon since there would not be enough time on Friday to prepare for Shabbat. Rabbi Aharon Lichtenstein (www.vbm-torah.org/shavuot/20shavin.htm, Daf Kesher #133, vol. 2, pp. 54-56, Yom Yerushalayim 5748) notes that, "Although the Beit Yosef (551, also see comments of the Bach) was astounded by this radical opinion and therefore ascribed it to a mistaken student, the fact that the same comment appears in Tosafot ha-Rosh makes his doubts implausible." Also, Tosafot is just following the rule of the Mishnah that Shabbat has precedence over Tisha B'av. While today Tosafot’s ruling is not applicable since with modern appliance there is enough time on Friday to do a laundry and cut one’s hair, the principle that Shabbat takes precedence over the mourning of Tisha B’av should still apply. Thus, if according to Tosafot, one can cut one’s hair on Tisha B’av for Shabbat, then certainly one is supposed to cut one’s hair (shave) in preparation for Shabbat in the weeks leading up to Tisha B’av.

We see that the practice of French Jewry as of the 11th century was that the prohibition of cutting one’s hair was only for the week of Tisha B’av. Apparently, this remained the practice of all of Jewry up to the 13th or 14th century since the Tur (1275-1340, b. Germany, d. Spain, 551), writes that the prohibition of cutting one’s hair was just the week of Tisha B’av. However, the Tur does add one extra point from the Ramban (1194-1270), that the prohibition to cut one’s hair during the week of Tisha B’av includes facial hair, i.e., shaving.

The Tur also discusses what to do if Tisha B’av falls out on Sunday. He first writes that even if Tisha B'av was really on Shabbat, the prohibitions of cutting one’s hair and doing laundry do not apply since there is no week of Tisha B’av. This is the opinion mentioned above in the Yerushalmi and quoted by the Rosh (the Tur's father, in Ta'anit, 29b, column one 34b) and the Ran (Ta'anit, pages of the Rif 9b). The Tur continues and quotes the Sefer Mitzvot Hagadol (Semag, R. Moshe of Coucy, northern France, 1247) who argued that when the fast of Tisha B'av is pushed off from Shabbat to Sunday, then one should keep the prohibitions of not cutting one's hair and doing laundry in the week prior to Tisha B’av. This might be the first authority who rules that these prohibitions exist before the week of Tisha B'av, and that the mourning for the destruction of the Bet ha-Mikdash supersedes the celebration of Shabbat. The Tur continues and quotes the Sefer Mitzvot Katan (Semak, R. Yitzhak Corbeil, France, 1277) who argued that even according to the Sefer Mitzvot Hagadol, one must be able to cut one’s hair and do laundry on Thursday and Friday when Tisha B’av is on Sunday since the Mishnah (Ta'anit 4:7) allowed cutting hair and doing laundry when Tisha B’av was on Friday. He also wrote that even keeping mourning for the beginning of the week was a redundant astringency.

 
The Haghot Maimonides (13th century, Germany, on Rambam Mishnah Torah, Laws of Fasts 5:6, comment 5) quotes in the name of Rokeach a compromise between the Semag’s and the Semak’s view that the practice of the rabbis of Germany when Tisha B'av was pushed off to Sunday was to mourn on Sunday through Wednesday but not on Thursday and Friday. Again, from the Sefer Mitzvot Katan and the Rokeach, we see the principle that preparing for Shabbat takes precedence over the mourning leading up to Tisha B’av.

A little bit after the Semag we read of a similar practice from the Sefer Hamichtam (on Ta’anit, Laws of Tisha B’av, R. David ben Levi, Provence, latter half of the 13th century). The Sefer Hamichtam records that when Tisha B’av is on Sunday, according to the law it is permitted to cut one’s hair in the preceding week, but the custom of the elders of Narbonne was not to cut one’s hair in order that one would enter Tisha B’av "disgusting," and the elders criticized a person who wanted to cut his hair. (R. Ovadiah Yosef, Yalkut Yosef, vol. 5, p. 564, follows this opinion.) Was this practice the source for the Semag’s view or was the practice in southern France influenced by the Semag or did the two views develop independently? 

In two interesting articles, Yaakov Gartner (1983 and 1985) argues that the movement called Mourners of Zion led to new customs and expansions of old customs of mourning related to Tisha B’av from what is recorded in the Talmud. This group mourned all year for the destruction of the Bet ha-Mikdash by wearing sack cloths, wailing, and not drinking wine or eating meat. Gartner claims that this latter custom led to a custom amongst non-Mourners of Zion in the Geonic period not to eat meat or drink wine for the entire three week period from the 17th of Tammuz to Tisha B’av (see Shulchan Arukh, 551:9). This group developed in the ninth century, their base was in Jerusalem, they were messianic, and they were almost definitely Karaites.  Gartner argues that the influence of the Mourners of Zion spread, first to the Rabbinate community in Israel, and then in the Middle Ages to Italy, Germany and France, and this influence can explain the extension of the prohibition to cut one’s hair in the period leading up to Tisha B’av.

 

We are now able to answer our question, how is that the elders of Narbonne could claim that a person should not cut one’s hair in the week preceding Tisha B’av when Tisha B’av was on Sunday when this contradicted the rule of the Mishnah that Shabbat takes precedence over the mourning for Tisha B’av? The answer is that most likely the elder of Narbonne were knowingly or unknowingly influenced by the Karaite Mourners of Zion, for whom the Mishnah was not authoritative, and hence they gave precedence to the mourning on Tisha B’av over preparing for Shabbat.

Gartner (1985, p. 216) notes that the Mourners of Zion saw no reason not to mourn fully on Shabbat. This accords with the Karaite understanding of Shabbat since they believe that one could not have any fire on Shabbat, which meant that for them Shabbat was cold, dark and miserable, see our discussion, "Lighting candles before Shabbat" http://lobashamayim.blogspot.co.il/2013/03/lighting-candles-before-shabbat-and-yom.html. Finally, the idea of looking disgusting accords with the practice of the Mourners of Zion to wear sack clothes all year round.

Interestingly, another custom of mourning in this period comes from Narbonne. Sperber (1995, p. 44) writes that the custom of not getting married during the three weeks from the 17th of Tammuz to Tisha B'av was first mentioned by a scholar from Narbonne, Meir ben Shimon ha-Meili in the same period, the 13th century. Thus, maybe the Mourners of Zion movement had specific success in influencing the Jews of Narbonne.

Once the break from the Mishnah occurred, then it was not long before the custom of not cutting one’s hair before Tisha B’av expanded. The Kol Bo (anonymous, end of 13th century, beginning of 14th century, quoted in the Bet Yosef, u-mah sh-katuv demi sh-takfuhu, and the lengthy Darkei Moshe) in almost a direct quote from the Sefer Hamichtam (does not mention the city Narbonne), writes that while the prohibition of cutting one hair is only the week of Tisha B’av, still the custom of the elders was not to cut their hair even the week before the week of Tisha B'av.

This custom of the Kol Bo was either not known by the Tur or he disregarded it (unlikely) since the Tur only mentions not cutting the hair in the week of Tisha B’av. It is mentioned again in the Maharil (Germany, 1365-1427, Laws of Tisha B’av, p. 239) who first records that cutting the hair is only prohibited in the week of Tisha B’av, and then a second opinion that one should not cut one’s hair from the beginning of the month. Thus, by the 15th century, in Ashkenazi Jewry there had developed a second stage to the prohibition of cutting one’s hair that it began from the beginning of the month of Av instead of the week of Tisha B’av.

The third stage developed just slightly after the second stage. R. Yeshayah of Trani (Trani, Italy, 1235-1300, Piskei HaRiaz, Ta’anit, pp.118,119) first quotes the law as stated in the Mishnah, that the prohibition of cutting one’s hair was only the week of Tisha B’av, but then he notes that in some places the custom was not eat meat or cut one’s hair for the three week period from the 17th of Tammuz to Tisha B’av. This later custom is almost definitely related to the Mourners of Zion since it was their influence that led to the custom of not eating meat for the three weeks, and Trani is located in southern Italy.

Again, the Tur and the Maharil either did not know of this custom or disregarded it, but the custom is quoted again in the period right after the Maharil. R. Isaac Tirna (1385-1450?, Trnova, Czech Republic, Sefer Haminhagim, Laws of Tammuz) writes that one does not cut one’s hair for the entire three week period, and then he mentions the custom of not eating meat during the three weeks.

The Shulchan Arukh (1488-1575), 551:3 writes that one is only prohibited from cutting one’s hair and doing laundry in the week of Tisha B’av. This follows the Mishnah Ta'anit 4:7, and I believe this is the Sefardi custom to this day.

However, the Rama (on 551:4) adds that the custom (amongst Ashkenazim) is to not do haircuts from the 17th of Tammuz through Tisha B'av (based on R. Isaac Tirna) and not to do laundry from Rosh Chodesh Adar through Tisha B'av. The Rama's custom makes the mourning leading up to Tisha B'av more important that celebrating Shabbat, and this was practice that developed amongst Ashkenazim after the big change in the 13th century.

The Arukh Hashulchan (Russia, 1829-1908, 551:16) wonders why the Rama prohibited hair cutting from the 17th of Tammuz while he only prohibited doing laundry from the beginning of the month of Av? He answers that hair cutting is not done as frequently as the laundry, and hence if the prohibition of hair cutting was just from the beginning of the month of Av, it would not be apparent that it is forbidden. This question and answer shows the arbitrariness of the extension of the laws of the Mishnah to nine days for not doing laundry and three weeks for not cutting one's hair.

While usually it is not a big deal not to cut one’s hair for three weeks, for those people who shave every day, or at least every Friday for Shabbat, the expansion of the mourning from the week of the Tisha B’av to the 17th of Tammuz is problematic since they will look disgusting after just a few days of not shaving. It should be noted that if a person chooses not to shave, from the 17th of Tammuz and/ or from Rosh Chodesh Av, then he is making a double expansion, once in reference to the days of mourning and also the Ramban’s expansion from hair cutting to shaving, as the Ramban only proscribed that people should not shave in the week of Tisha B’av. I think that a person who shaves everyday must shave before Shabbat during the three weeks, even by Shabbat Hazon, since otherwise one is making the mourning for Tisha B'av more important than Shabbat, which contradicts the Mishnah and all Ashkenazi practice until the 13th century. If a person makes an effort to look nice on Shabbat Hazon, then how can they not shave and look disgusting?

To summarize, we see that the initial prohibition of cutting one’s hair was only during the week of Tisha B’av, which starts from Sunday, since this gave greater precedence to preparing for Shabbat than for the mourning for Tisha B’av. This approach has remained the Sefardi position, and it was also the Ashkenazi custom until approximately the 13th, 14th centuries. However, at that time, probably due to unknown Karaite influence, some Ashkenazim began to give greater priority to the mourning leading up to Tisha B’av than to Shabbat. With this development, amongst Ashkenazim there first began the custom of not cutting the hair from the beginning of the month of Av, and then the custom developed (middle 15th century?) not to cut one’s hair for the entire three week period. Yet, if one shaves every day, then one must shave on erev Shabbat for Shabbat throughout the three week period following the opinion of the Mishnah, Talmud, Tosafot, the Rosh, the Ran, the Tur, the Sefer Mitzvot Katan and the Rokeach that Shabbat has precedence over the mourning of Tisha B’av.