This week’s alumni dvar torah is by Rabbi David Fried
In Parshat Shlach, we read about the Mekoshesh Eitzim. The man who publicly violated Shabbat (the specific nature of the sin is unclear—See Masechet Shabbat 96b). There is a debate amongst the medieval parshanim regarding when this incident took place. Rashi quotes the Sifrei (113), which says:
בגנות ישראל הכתוב מדבר שלא שמרו אלא שבת ראשונה ושניה חללו
The Torah speaks of Israel’s disgrace, for they kept only one Shabbat, and the second they desecrated.
The Ramban (Bemidbar 15:32), on the other hand, disagrees:
ולפרשה הזאת סמך אחריה ענין המקושש, כי היה בזמן הזה אחר מעשה המרגלים על דרך הפשט
After this section comes the section of the Mekoshesh, because it happened at this time after the incident with the spies, according to the Pshat.
At first glance, the Ramban seems to have a much smoother read. After all, why would the Torah tell us about this incident here if it actually happened much earlier? However as we read on, things become more complicated. In pasuk 34, after the man is caught, it says
וַיַּנִּיחוּ אֹתוֹ בַּמִּשְׁמָר כִּי לֹא פֹרַשׁ מַה יֵּעָשֶׂה לוֹ
They put him in prison for it had not been made explicit what was to be done to him.
G-d then instructs Moshe that the Mekoshesh is to be put to death by stoning. According to the Ramban, what does it mean that it had not been made explicit what to do with him? The Torah had already said explicitly in Parshat Ki Tisa (Shmot 31:14)
וּשְׁמַרְתֶּם אֶת הַשַּׁבָּת כִּי קֹדֶשׁ הִוא לָכֶם מְחַלְלֶיהָ מוֹת יוּמָת
You should observe the Shabbat for it is holy unto you; its desecraters shall surely be put to death.
The Ramban does not address this question in his commentary on the Torah, but does address it in his commentary on Masechet Bava Batra 119a. He quotes the Gemara there, which says that what had not been made explicit was the precise manner of death penalty he was to be given. He also offers his own explanation that perhaps the Mekoshesh was not given a proper warning, and the death penalty in this case was a הוראת שעה. Neither of these explanations have any basis in the text. According to the Sifrei’s approach, however, the text reads beautifully. The Torah first commands us to keep Shabbat in Parshat Beshalach, when the man begins to fall, several weeks before matan Torah. Indeed, when Shabbat is first commanded, no penalty is made explicit for its violation. If the Mekoshesh did, in fact, happen on their very second Shabbat in the desert, then they would actually have had no idea what the punishment was supposed to be for desecrating the Shabbat.
The Sifrei’s approach, of course, still has to explain why the Torah chooses to tell us this story here, if it happened much earlier. The answer, I believe, is that it was the attitude, whose seed was planted by the mekosheish eitzim, that ultimately led to the sin of the spies in Parshat Shlach. For one Shabbat, the Jews maintained the possibility that we could have a community truly devoted to the mission G-d places on us for its own sake; truly committed to keeping the mitzvot for the love of G-d alone without having to think about external reward and punishment. The Mekosheish Eitzim forced us to start thinking about Mitzvot with a utilitarian calculus: what will happen to me if I don’t keep it? Is it really worth the effort? It was this sort of thought process that led the Jews to want to gather facts about the land of Israel to see if it would be truly worth it, or if they would rather go back to the land of Egypt.
We have seen that while the so-called “peshat” approach seems attractive at first, when we read the whole section and its broader context, the midrash actually does a better job of explaining it both textually and thematically.
Rabbi David Fried (SBM 2010) teaches Talmud at the Frankel Jewish Academy in West Bloomfield, MI and is a musmakh of Yeshivat Chovevei Torah.
 The Sifrei itself (114) quotes the same approach as the Gemara in Bava Batra that they did not know which death penalty to give him, even though this would seem unnecessary according to what we have demonstrated. Of course, there is no reason we have to say that every paragraph in the Sifrei is written by the same person, so it could simply represent an early antecedent for the Ramban’s position. Rashi, however, quotes both paragraphs from the Sifrei. He may be assuming an oral tradition, not indicated in תורה שבכתב, that all of Hilchot Shabbat were given the first week, and not just the ones that are written in Parshat Beshalach. ואם הלכה היא נקבל.