Legal Advisor to Torah Mitzion
“Just as there are laws to song, so, too, there is song in law” (Rav Avraham Yitzchak Hacohen Kook)
On the last day of Pesach, we read “Shirat Hayam” (Shemot 15). This tremendous song exposes us to the intensity of the emotions experienced by Bnei Yisrael as they crossed Yam Suf:
Yet what place does a chapter of lilting song have in a book of law?!
Anyone familiar with Jewish heritage knows that alongside the more abstract laws, regulations and commands contained in the Torah, there are interspersed a not insignificant number of poems and narratives, from which Chazal also derived Halakhot and legal norms.
The songs in the Torah give pride of place to the virtues of law and justice. Shirat Ha’azinu, for example, describes Hashem as the judge of all the earth, by stating: “The Rock – Perfect in His work, for all His paths are justice; a God of faith without iniquity, righteous and fair is He” (Devarim 32:4). We are meant to emulate God in the pursuit of law and justice, righteousness and the prevention of iniquity.
In the Book of Psalms, David Hamelech waxes eloquently on the importance of these virtues: “For justice shall revert to righteousness, and following it will be all of upright heart” (94:15); “Praiseworthy are those who maintain justice…” (106:3); “He leads me in paths of righteousness” (23:3). The last verse should really be translated: “…circles of righteousness.” This is why the modern Israeli Supreme Court building incorporates circles (of justice) in its architecture (based on the aforecited verse), alongside lines representing the law, as in: “You are righteous… and Your laws are straight” (119:137). Moreover, the Courtyard of the Arches in the building is made of stone quarried from the earth; while the narrow water channel bisecting the Courtyard reflects the sky, inspired as it was by a verse from Tehillim: “Truth will spring up from the earth and justice will be reflected from the heavens” (85:12).
Foremost amongst the poets of Israel was no less than Moshe Rabbeinu himself, judge and lawgiver par excellence: “Then Moshe and the children of Israel sang this song unto the Lord…” (Shemot 15:1).
A tradition of synthesizing great legal commentaries with equally impressive and inspiring poetry was upheld by many great Jewish leaders over the generations: ranging from Rav Saadya Gaon in 10th century Bavel and Rav Zarchia HaLevi (Baal Hamaor) in 12th century Provence, through to Rav Avraham Yitzchak Hacohen Kook, first Chief Rabbi of Palestine in the 20th century.
This is not totally surprising as the Torah is by its own definition shira. The command at the end of Devarim: “And now write for yourself this shira” (song) may well refer to the whole Torah (see Ralbag). However, asks the Netziv in the introduction to his Haemek Davar commentary, surely the Torah with few exceptions was not written in the form of poetry! We must therefore conclude, answers the Netziv, that:
The Torah possesses the nature and essential character of poetry. Everyone knows that there is a distinction between poetry and prose. In poetry, the subject matter is not plainly set forth as in prose. Additional explanations are necessary in order to indicate the allusions condensed into each expression…
Such is the nature of the Torah. Its story is not elaborated on and it is plainly explained, but it requires additional explanations in order to appreciate its allusions…
The Netziv thus points here to the essential quality of poetry as its condensation and compressed nature and its allusiveness. This 19th century Talmudist, steeped in Rabbinic law, expresses in his own language the reality that poetry is essentially symbolic and requires constant reading over, in order to taste its full significance. It has many levels of meaning. The implicit meaning is the heart of poetry. Similarly, the so-called hidden implications of the Biblical text are its real meaning!
There are other similarities as well. Songs, like the law, reflect the spirit of the time and place. As such, they both require updating from time to time. This explains why every generation is obligated to write its own Sefer Torah, its own song. And poems are also similar to the law, inasmuch as both require interpretation, in order to ascertain the intent of the poet/lawgiver.
One of the greatest Lithuanian Halakhists of the 19th century, Rav Yechiel Michal Epstein, saw the legal system as being a wonderful kind of symphony of notes all needing to be brought into harmony. At the beginning of his classic Halakhic work, Aruch Hashulkhan, on the Choshen Mishpat section, he writes:
All disputes between the Tannaim, the Amoraim, the Geonim and the Poskim, if fully understood, are the words of the Living God, and all find expression in the Halakha. To the contrary, this is the splendor of our holy and pure Torah; the entire Torah is called shira, and the splendor of a song occurs when it contains different voices…
Modern-day judges have at times used shira in a display of judicial creativity, generally in order to decorate and enliven judgments and to instill extra vivacity (neshama yeteira) in them, which is vital to the world of the law.
One nice example of this was a Supreme Court judgment (Criminal Appeal 522/78) which attempted to verify whether policemen acted in the course of their statutory duty when they tried to search the appellant’s house without a search warrant and look for the appellant’s son who had escaped from lawful custody. The law only permits a police officer to enter and search a house without a warrant if “the officer is pursuing (rodef) a person evading arrest or escaping from lawful custody” a short time earlier. Justice J. Kahan held that the phrase “to pursue a person” did not mean that the pursuit had to be close in time to the escape from custody or the commencement of the pursuit. A policeman would be considered to be “pursuing” a person – even if some appreciable time had lapsed between the escape and the pursuit.
The Judge found support for his ruling in the use of the verb radaf in Shirat Hayam:
When the Torah tells us: “The enemy said: I will pursue, I will overtake, I will divide the spoil,” it certainly did not mean immediate pursuit after the Israelites had left Egypt…
Any other verdict would mean that a policeman would be forbidden to enter a house without a warrant in order to apprehend a dangerous criminal who had escaped from custody and a month later was known to be hiding there.
“Just as there are laws to song, so, too, there is song in law”