At the conclusion of this week’s parshah, the Torah writes about the mekoshesh eitzim – who, according to one opinion, desecrated Shabbos in the midbar by gathering wood. The pasuk says that since the halacha concerning a Mechallel Shabbos was uncertain, the mekoshesh was placed in custody until the halacha was clarified. Hashem then told Moshe Rabbeinu that he should be put to death by stoning. And so he was.
The Shvus Yaakov (vol. 1,14), in the name of the Emunas Shmuel, asks an interesting question. The pasuk implies that the mekoshesh was placed in jail on Shabbos, but the Mishnah (Beitzah 36b) clearly rules that we are not allowed to judge or carry out judgment on Shabbos or Yom Tov lest one come to write down the arguments of the parties involved or the final judgment. How then was Moshe Rabbeinu permitted to incarcerate the mekoshesh on Shabbos?
The Beis Yosef (Orach Chayim 263) writes in the name of Rav Sharira Gaon that if beis din first becomes aware on Shabbos that a person committed an aveirah, it may not incarcerate him on Shabbos or Yom Tov – even if the dayanim fear he may run away before Shabbos or Yom Tov ends.The Rema codifies this ruling in Orach Chayim 339:4. Others disagree, ruling that placing one in jail to await judgment does not fall under the category of “judgment on Shabbos and Yom Tov”(Shvus Yaakov ibid.).
The Bigdei Yesha (Orach Chayim 339:4) suggests that it is permitted to incarcerate a person on Shabbos for desecrating Shabbos. Thus, we can understand why Moshe Rabbeinu was allowed to place the mekoshesh in jail on Shabbos. Additionally, he says that perhaps place the mekoshesh was immediately incarcerated to teach Klal Yisrael the importance of Shabbos.
The Kaf Hachaim (Orach Chayim 339:24) differentiates between placing one behind bars and placing one in a room with human guards. He says that it is only prohibited to place someone behind bars on Shabbos and Yom Tov. However, it is permitted to place someone in a guarded room. Therefore, we can assume that the mekoshesh was placed in a room with human guards, but not behind bars.
The Ibn Ezra and Rabbeinu Bachya explicitly write that the mekoshesh was apprehended after Shabbos. This can be deduced from the pesukim that say it was unclear which death sentence the mekoshesh deserved. The pesukim imply that had beis din known which sentence to administer, it would have executed that sentence immediately. But if the mekoshesh was apprehended on Shabbos, how could beis din have executed him? It is prohibited for beis din to judge – and certainly to kill – anyone on Shabbos. Additionally, beis din is not permitted to hear testimony on Shabbos. If the mekoshesh was apprehended on Shabbos, how could Moshe Rabbeinu have accepted testimony regarding his sin? Thus, it is clear that the mekoshesh was first apprehended after Shabbos – and only, therefore, thrown into jail at that time as well.
When I first came across the Shvus Yaakov’s question, I did not understand it. The Mishnah in Beitzah quoted above only prohibits judging on Shabbos and Yom Tov mi’de’rabbanan. Why are we assuming that Moshe Rabbeinu was bound by rabbinic prohibitions when he was in the midbar, a millennium before the rabbanan who issued these prohibitions were born?
Some suggest that the rabbanan may not prohibit something the Torah explicitly permits (see Taz, Orach Chaim 588:5 and Tosafos, Baba Metzia). In other words, the fact that the rabbanan prohibited judging on Shabbos means that the Torah could not have permitted it. So how could Moshe Rabbeinu have incarcerated the mekoshesh on Shabbos?
But this explanation of the Shvus Yaakov’s question is not satisfactory. The position of Tosafos and the Taz is that the rabbanan may not prohibit something that the Torah commands us to do. For example, the Torah explicitly commands us to do a bris milah on the eighth day and therefore we do it even if the eighth day falls on Shabbos. The rabbanan have no authority to rule otherwise.
But the rabbanan certainly could have prohibited incarcerating someone on Shabbos since the Torah never explicitly says anything on the matter. (At best, all we have is a Biblical story regarding a Shabbos violator. A story is not a commandment that binds anyone.) In other words, unlike what we said above, there is no proof from the position of Tosafos and the Taz that the Torah prohibits incarcerating someone on Shabbos.
Therefore, the question returns: In the absence of a Torah prohibition, why should Moshe Rabbeinu have been bound by a rabbinical decree when he lived a millennium before the rabbis who issued it?
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