A.
Divinely commanded to settle the score with their Midyani adversaries, Israel defeats them in battle: ואת מלכי מדין הרגו על חלליהם וכו' ואת בלעם בן בעור הרגו בחרב (“And the kings of Midyan they slew along with [the rest of] their fallen...and Bil’am ben Be’or they slew with the sword”; XXXI, 8). However, Bil’am did not meet his end during the fighting; rather, the Sifrei informs us, ר' נתן אומר בב"ד הרגוהו שנאמ' "ואת בלעם בן בעור הקוסם הרגו בני ישראל בחרב וגו'" (“Rabbi Nathan says, 'By order of a court they executed him, as it is said, "And Bil’am ben Be’or, the wizard, the bnei Yisra’él killed with the sword...." [Joshua XIII, 22]'” פרשת מטות פיסקא ה'). In short, Bil’am was tried by Moshe’s Sanhedrin, convicted, and executed.
The Êmeq ha-Netziv, commenting on the above from the Sifrei, notes ומדכתיב "הקוסם" למדנו שדנוהו כמחשף ודעת ר"נ שב"נ הוזהרו על הכישוף כו' ואינן נהרגין אלא בסייף ומכש"כ מכשף דריה"ג סובר דדינו אפילו בישראל בסייף וגו' (“And from what is written, “the wizard,” we learn that they tried him as a m’chashéf [‘sorcerer’], and [that] in Rabbi Nathan’s opinion bnei Noach are admonished concerning kishuf [‘sorcery’]... and they are only executed by the sword; and especially a m’chashéf, since Rabbi Yossi ha-Galili holds that he is sentenced to [die by the sword] even in Israel....” עיי' סנהדרין דף נ"ו: ותוספתא דע"ז פ"ט לדעת רבי נתן, וסנהדרין ס"ז. לדעת רבי יוסי הגלילי ).
So the Netziv concludes that Bil’am’s sentence was justified. But was it?
B.
Elsewhere in the Talmud, we discover that Bil’am’s relationship with his athon (“female donkey”) was rather more intimate than it should have been. When the athon miraculously spoke on reaching Balaq’s camp, it blurted out, amongst other things, שאני עושה לך רכיבות ביום ואישות בליליה (“that [she] gave rides to [him] by day and carnal relations by night;” עבודה זרה ד:).
Now, the mishna tells us of Arba Mithoth Béyth Din, sqila (“stoning”), sréfa (“burning”), hereg (“death by the sword”), and cheneq (“strangulation”), in order from most severe to least severe, four death sentences which the Torah mandates can be administered by the Sanhedrin (סנהדרין מ"ט:).
Noting this, we move on a bit in the same massechta and find: אלו הן הנסקלין, הבא על האם ועל אשת האב, ועל הכלה, ועל הזכור, ועל הבהמה וגו' (“These are the ones who are stoned: One who has relations with his mother, or with his father’s wife, or with his daughter-in-law, or with a male, or with a beast....” שם נ"ג.).
Finally, we take note of one more eventuality: מי שנתחייב שתי מיתות נידון בחמורה כו' ר, יוסי אומר נידון בזיקה הראשונה שבאה עליו (“One who has incurred two death sentences, the more severe one is executed.... Rabbi Yossi says, 'The first instance which he incurred is executed;'” שם פ"א.).
Now let us think a bit: Regardless of whether we hold like the tanna qama (“first authority”) or like Rabbi Yossi in the last mishna, the result should be the same: Sqila is considered more severe than hereg, and presumably Bil’am’s relationship with the athon predated the kishuf in which he engaged concerning Israel; Bil’am, it seems, should have been liable for sqila rather than hereg.
At this point, the learned reader will ask to call a halt to the proceedings: Bil’am, after all, was a ben Noach, not a member of Israel, ואינן נהרגין אלא בסייף, as the Netziv himself writes: Bnei Noach are only subject to a sentence of hereg, the other three mithoth Béyth Din can only apply to someone who is subject to Torah. So why should we engage in any speculation concerning Bil’am’s sentence?
When I first read the Netziv’s comment, I was bothered by one thing: Why did he continue, after telling us that Bnei Noach are only subject to hereg, to tell us that Rabbi Yossi ha-Galili holds that “even in Israel” a m’chashéf is executed by hereg. What relevance does it have, if Bil’am was a ben Noach and not a member of Israel?
C.
The answer, it seems to me, lies in the unique juncture in history which the events surrounding Mattan Torah represent.
Noach, on leaving the teiva, was given seven mitzvoth: He and all of his descendants were forbidden to engage in idolatry, forbidden to curse G-d (into which category Rabbi Nathan and others place kishuf), to engage in bloodshed, in sexual impropriety, to expropriate another’s property, or to eat part of a living animal, and enjoined to establish courts of justice to adjudicate these matters and such disputes as might arise amongst them (רמב"ם הל' מלכים פ"ט ה"א).
This was Noach’s covenant with G-d. Over the next three centuries, fidelity to this original covenant rapidly faded amongst most of Noach’s descendants.
Into this world, the Patriarchs, beginning with Avraham, were born. Already fervent observers of the Noachide covenant due, if nothing else, to their education in the yeshiva which had been established by Shem and Ever, they were unlike the others in their respective generations, and yearned for greater spiritual heights. Their intense longing for dveiquth, for oneness with Ha-Shem, gained them early access to the Torah, even before the moment which had been Divinely foreordained for it to come into the world, and be formally commanded.
One by one, the Patriarchs and the shvatim, Ya’aqov’s sons, assumed wholly voluntarily and enthusiastically the spiritual discipline and consequent obligations of the Torah, making them gérei tzedeq of a sort, righteous converts (עיי' גור ארי' לבראשית מ"ו י'). The spiritual tools of Torah observance enabled the patriarchs (and the matriarchs) to scale dizzying heights of spiritual accomplishment. As a reading of Genesis demonstrates time and again, they were nevi’im, prophets, in close, frequent contact with the Divine.
Torah sources tell us that, just before Mattan Torah, G-d offered the Torah to all the nations of the world, before finally bestowing it on Israel (עבודה זרה ב:, זוה"ק ח"ג קצ"ב.). In preparation, therefore, should the nations have accepted it as Israel did, נביא הי' להם לאוה"ע כמשה, זה בלעם בן בעור (“The nations of the world had a prophet like Moshe; this was Bil’am ben Be’or;”במדבר רבה פי"ד סי' ל"ד, ע"ע מדרש תנחומא פר' צו א').
But, as already stated, nevu’a, prophecy, is a major spiritual accomplishment, one which requires and presupposes careful adherence to Torah practices, with all of the proper intentions and mental attitudes. As the Torah tells us, the patriarchs engaged in such practices. And, the midrash tells us, Bil’am, too, asserted that he observed the Torah (עיי' ספר פנינים יקרים בשמ המדרש ).
If Bil’am’s assertion to the authorities in Mo’av that he was Torah-observant had ever been true, this might serve to explain the source of his prophetical greatness as well. It would also mean, as with the patriarchs and shvatim, that at some stage of his life he was a gér tzedeq like them, and therefore, voluntarily, subject to Torah law. Had this “conversion” been at all sincere, it would also mean that his subsequent transgressions were also subject to Torah, and the Arba mithoth béyth din.
Herein, I believe, lies the significance of the Netziv’s aside, that “even in Israel”, a m’chashéf is liable for hereg.
So, if Bil’am had indeed subjected himself to the Torah, as we have suggested, and not merely to the seven Noachide commandments, why was he not sentenced to sqila because of the athon?
Because it was that unique athon.
Elsewhere in the Talmud, we find a discussion of possible birth defects, and the status of a fetus afflicted with one or another of them, where we learn: הכל מודים גופו תייש ופניו אדם, אדם (“Everyone agrees that [if] its body is a goat and its face human, [it is] human;” נדה כ"ג:). The reasoning is that the status agrees with the shape of the face; the superiority of a human being over an animal lies in the human ability to use language, and language requires the structures of the human face (רש"י שם דה"מ גופו תייש ובבראשית פ"ב ז'). Near the beginning of the discussion, Tosafoth clarify that the major question at issue in the status of each case is אם הרובע חייב סקילה כדין הבא על הבהמה (”If one who has relations [with it] is subject to sqila, like the sentence of one who has relations with a beast;” שם כ"ג. דה"מ ולאתסורי).
The unique, miraculous athon of Bil’am had been created with the power of speech; it was hence arguably similar to the case in the above gmara, the body of a beast with a human face, in which case, it seems, Moshe’s béyth din apparently ruled it human, for this purpose, and so Bil’am was acquitted on this count, and not sentenced to sqila, leaving him open to the sentence of hereg for kishuf.
D.
It remains for us to reflect a bit on how it was that Bil’am, who, the midrash asserts, had been a navi “like Moshe,” had sunk so low, whilst concerning Moshe the Torah testifies: ולא קם נביא עוד בישראל כמשה אשר ידעו ד' פנים אל פנים (“And there did not arise in Israel another prophet like Moshe, whom Ha-Shem knew face to face;” Deuteronomy XXXIII, 10). How had Moshe reached such a pinnacle of human perfection, and his counterpart Bil’am sunk so low?
The answer, I believe, lies at least in part in the following analogy: Imagine a young rabbi, a true talmid chacham, earnest and fervently observant himself, who accepts the leadership of a congregation of âm-horatzim, ignorant, lax in observance, and preoccupied with materialistic goals. Unless that young rabbi is a most outstanding and charismatic leader, and succeeds in relatively short order in transforming at least part of his congregation, he will be brought down by the congregation, and may even, over time, come to accept their norms and standards as his. On the other hand, his colleague who accepts a position in a thriving, vibrant Jewish community of learned, studious individuals, thirsty for Torah, will flourish, and will be elevated to even greater heights of achievement by the challenges posed by such a zealous congregation who take what he says seriously and are themselves earnestly ever striving upwards.
The first “rabbi” was Bil’am; the second, Moshe. Each came to embody the spirit and aspirations of his respective “congregation,” the nations of the world for Bil’am, and Israel for Moshe.
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