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Parashat Ki Tissa 5760/2000
The Trial of Those Who Worshipped the Golden Calf
Rabbi Dr. Ratzon Arussi
Department of Talmud
According to the plain sense of the text, we know what punishment was given the people who sinned in the matter of the golden calf: at Moses' order close to three thousand people were slain by the Levites. Although Scripture does not say explicitly that these sinners were tried in court, the Oral Law spells this out explicitly and furthermore, hints about the sinners being tried can be found in the text. Let us examine what the Oral Law has to say about the trial of the sinners in the affair of the golden calf.
Targum Pseudo-Jonathan remarks on the verse, "Moses stood up in the gate of the camp and said, 'Whoever is for the Lord, come here!' And all the Levites rallied to him" (Ex. 32:26) as follows: "And Moses arose in the Sanhedrin at the gate of the camp." In other words, Moses stood up in his court (so Midrash Ha-Gadol), which was the High Court (Meor ha-Afelah), and invited all God-fearing people who had not taken part in the sin of the golden calf to join him and serve as judges and magistrates in order to try the offenders. Therefore the Levites rallied to Moses, because they had not taken part in the sin of the golden calf (Yoma 66b). Moreover, the Levites apparently remonstrated against the offenders prior to Moses' arrival in the camp, so that when Moses arrived he found the people in two opposing camps, pitted against one another (Ibn Ezra, on Ex. 32:26).
In this context Targum Pseudo-Jonathan continues with verse 27, in which Moses instructed the Levites as to the action they should take against the offenders: "He said to them, 'Thus says the Lord, the G-d of Israel: Each of you put sword on thigh, go back and forth from gate to gate throughout the camp, and slay brother, neighbor, and kin.'" In the Aramaic translation: "So said the Lord, all who sacrificed to idolatry shall be put to death by the sword, therefore let each man gird his sword on his loins and now go back and forth from the gate of the Sanhedrin to the gate of the lower court in the camp and pray to the Lord that he forgive you this sin, and you avenge the sinners who worshipped idolatry. "
The Levites were not enjoined to kill people indiscriminately, rather they were requested to follow standard legal procedure: to leave the Supreme Court (Great Sanhedrin) and go to lesser courts of 23 members (that adjudicate capital offenses), which, in the conditions pertaining in the wilderness, were tribal courts (Me'or Ha-Afelah). In other words, the Levites were instructed to have many courts to hear the cases of the offenders (Midrash ha-Gadol), and were to judge the offenders by the law that applies to idol worshippers, sentencing them to death by the sword [one of the four types of death penalty meted out in Jewish Law]. They had to realize that as long as the offenders had not paid retribution, a great sin lay over the people for not judging the offenders and punishing them, and that sin incurred the danger of G-d punishing the people on this account. Therefore the Levites were requested to overcome their emotions and judge truthfully, then to carry out the verdict even if those who had to be slain were their own relatives.
Was the punishment meted out to the idolaters who sinned by worshipping the golden calf--being slain by the sword--an emergency order or a standard practice of the Halakhah? When Moses was instructing the Levites what action to take against the offenders he saw fit to say to them, "Thus says the Lord." The Mekhilta (Bo, ch. 12) asks in this regard: "Where did the Lord say this?" And the Mekhilta answers, "In the words, 'Whoever sacrifices to a god other than the Lord alone shall be proscribed' (Ex. 22:19)." Rashi ad loc. also mentions this idea.
Maimonides, however, includes idol worshippers in the list of those who are punished by stoning, not by the sword (Hilkhot Sanhedrin 15.10). However a person who is subverted to idolatry Maimonides includes in the category of those to be executed by the sword (loc. sit., 12; also cf. Avodah Zarah 3.1; and Rashi on v. 20, who says they are to be judged like the people of a city subverted to idolatry). In Nahmanides' opinion, the offenders' punishment was decreed by emergency order.
For those who are of the opinion, contrary to Nahmanides, that the offenders' trial was not held under emergency order, the question remains whether the legal proceedings satisfied the elementary halakhic requirements in cases of capital offenses, such as the rules of procedure regarding witnesses and giving due warning. Yoma 66b relates to these issues in the context of a question that a wise woman asked of R. Eliezer, namely why the offenders in the sin of the golden calf were punished in different ways even though they all committed the same offense? The Talmud responds, "It is an argument between Rav and Levi. One says, he who offered sacrifices and incense, was killed by the sword; he who embraced and kissed the Golden Calf--by death; he who was happy in his heart, by the waters. And the other says, In cases where there were witnesses and warning was given, [they were punished] by the sword; where there were witnesses but no warning, by putting to death; where there were neither witnesses nor warning, by the waters [hidrokan]." According to one opinion just cited, those who were executed by the sword were the major offenders who had been warned by witnesses but nevertheless persisted in sinning by worshipping the golden calf.
According to the Jerusalem Talmud, Sotah 3, 4, "Where there were witnesses but no warning, the accused were tried in the same manner as a sotah (namely, hidrokan). Where there were neither witnesses nor warning, they died in the plague. Who gave the warning? The Levites who not only had not sinned, but also had remonstrated against the sinners to prevent them from sinning." (cited by Nahmanides, loc. sit., v.27).
In his commentary on Yoma 66b Rashi remarks on the three ways in which the offenders died, each being punished according to the severity of his actions:
There were three ways in which they died: by sword, "each of you put sword on thigh"; by plague, "then the Lord sent a plague upon the people"; and by hidrokan [ordeal of drinking a potion of water mixed with pulverized powder of the golden calf], as it is written, "and [he] strewed it upon the water." As we said in Tractate Avodah Zarah 44a, Moses intended to submit them to the ordeal as a sotah is tried, by administering a potion and observing whether it "causes the belly to distend."
According to his commentary, the courts only sentenced to death by the sword those people who had been properly forewarned and against whom there were witnesses. These individuals were sentenced as the inhabitants of a city subverted to idolatry, namely to death by the sword. Those whom witnesses had testified against but who had not been properly forewarned were punished by the Lord by means of the plague. However some sinners were punished by hidrokan, namely those who secretly took pleasure in the sin of the golden calf. Since this is something that cannot be verified, for it is a matter of inner feelings, Moses tried them the way a sotah is tried, for her guilt or innocence is likewise a matter of the heart, and they were punished the way a sotah is punished. Rashi's approach is similar to that of the Babylonian Talmud, and for the sake of brevity we will deal with his interpretation.
Sotah refers to a woman whose husband suspects her of infidelity, but who herself denies the charges and against whom there are no witnesses. She is suspected on the grounds of having spent time in private with another man, notwithstanding her husband's admonishing her before witnesses not to see that person in private. In other words, there is good reason to suspect her of infidelity. Therefore the Torah commanded that the woman be brought to the Sanctuary and given a potion into which the name of G-d has been rinsed off. If she did not commit adultery then the water would not harm her; quite the contrary, she would be blessed. If she committed adultery the water would affect her health and she would die in pain and disgrace. Accordingly, as Rashi says, the Talmud meant to say that Moses burned the golden calf and pulverized it, then strew its ashes over the water and gave it to the Israelites to drink. Those who were implicated in the sin of the golden calf died of hidrokan.
According to Targum Jonathan, the water caused a mark to emerge on the offender's face, identifying those who were guilty. By this approach, however, if the sign was intended to identify the guilty persons to the court so that the court could put those people to death, it follows that the court must have been acting under emergency orders; for a court may not put someone to death on the basis of omens but only on the basis of witnesses' testimony.
Thus we see that the Oral Law viewed the sin of the golden calf as idolatry, a very serious crime punishable by the death penalty, generally through stoning but in the case of a city subverted to idolatry, by the sword. According to the Mishnah and Talmud, Moses invoked the legal system and put the offenders on trial. One view is that the legal system acted under emergency orders, and another that they followed usual legal procedure. Scripture, as we have observed, has elements that hint at the approach taken by the rabbis in the Mishnah and Talmud.
Whether the legal system was acting under emergency orders or
whether it was following legal procedure, Moses cannot be accused
of vengeful punishment, without due legal process, of the people
who took part in worshipping the golden calf. In our tradition
upholding justice is essential to the survival of the world; for
the world is founded on three things: "On Justice, Truth,
and Peace" (Avot 1.18), and even the descendants of
Noah are commanded to maintain courts. Thus, according to Maimonides,
the men of Shechem were lawfully killed by Simeon and Levi, because
they did not bring Shechem son of Hamor to justice for kidnapping
Dinah and raping her (Hilkhot Melakhim 9.10). We who are
commanded to obey the Torah must be all the more scrupulous in
maintaining our legal system, both with respect to offenses between
one person and another and with respect to offenses against the
Lord, since "by justice a king sustains the land" (Prov.
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