Rambam, in Hilchot Teshuva 1:1, states that Teshuva is open to anyone who sins, whether their sin be on purpose (b'meizid) or by accident (b'shogeg). Later, in 4:1, he discusses a group of four types of people who are not even given the opportunity to do teshuva. The first three can be grouped together as people who were responsible for causing or allowing others to sin. The fourth person listed in this category is one who says "echteh v'ashuv' - I will sin and then I will repent. It is here that our question arises: If teshuva is open even to willful sinners, then why is this person excluded? Seemingly, his action is the prime example of meizid! To understand this seeming contradiction in the Rambam, we will investigate what exactly teshuva is, or might be, and how that nature of it impacts on the Rambam in these two cases.

The essential question that we will deal with is whether we view teshuva as a din or as a chesed, whether it is a fixed part of the Divine justice system or whether it is something that Hashem does for us out of the goodness of his heart, as it were. Devarim 30:2-3 seems to indicate that teshuva is a din - it works automatically. There the verses say that in the future the Jews will return to Hashem, and after that Hashem will return to them and forgive them. Seemingly, the former will automatically lead to the latter. The Ba'alei mussar take the other approach. Ramchal writes, in chapter 4 of Mesilat Yesharim that this is clearly a chesed that is not part of midat ha-din. Rabbeinu Yonah, in the opening line of Sha'arei Teshuva, also claims that teshuva comes from the goodness of Hashem.

There are several cases in the gemara that may help to flesh out this issue and further us along the path of characterizing teshuva. The first case in from Kiddushin 49b. There the gemara discusses several alternative phrases that a man may use to betroth a woman (e.g. "You are betrothed to me on the condition that I am rich", etc.). One such phrase given is "You are betrothed to me on the condition that I am a righteous individual." The gemara states that in such a case, even if he was know to be wicked, she is betrothed to him, as perhaps he had already had thoughts of teshuva in his mind. First let us realize just how wondrous this case is. In general, we are very careful to insure that every step of the betrothal process is done exactly according to law, without any room for doubt. Any error in such cases leaves open the possibility that the kiddushin is no good, leading to potential problems regarding the status of any children that will be born, and other major issues. Nevertheless, our gemara allows such a kiddushin to occur, merely because we speculate that the man has done, or at least has begun doing, teshuva! As far as our discussion goes, this case perhaps can indicate that if we have any reason to assume that a person might have done teshuva, then we can also assume that his teshuva has worked and been accepted and that he has thus been absolved of all of his sins. We could not assume such things about the nature of Hashem's justice system if we would not know that teshuva always works, i.e. it functions as a din.

The second gemara comes from Rosh HaShanah 17b. There the discussion concerns Moshe's plea to Hashem to forgive the Jews following cheit ha-egel. It states that Hashem, as it were, wrapped himself in a tallit and told Moshe that whenever the Jews would sin, their remedy would be to recite the 13 Divine attributes and they would thus be forgiven. Again, it seems that there is an automatic process at work - the Jews do their part by praying, and Hashem responds in turn by forgiving them.

We now turn to two cases that may imply that teshuva is actually a chesed, a kindness performed by Hashem. The first such case comes from Sanhedrin 103a. There the discussion concerns Menashe HaMelech, who ruled for 55 years and was notorious for having placed an idol in the Temple. The gemara discusses the fact that after 22 years of doing evil, he began to repent. The verse in Divrei HaYamim (Chronicles) states with regard to this "Va-yechateir lo," that Hashem created a subterfuge for him. After suggesting a more plausible alternative text, the gemara concludes that the strange choice of language used by the verse indicates that al pi ha-din, according to the strict law, Menashe was not worthy of forgiveness, yet out of the goodness of his heart, as it were, Hashem allowed him to repent "through the back door." At first glance, this case seems to imply teshuva as a chesed, that Hashem can grant and deny forgiveness to whomever He chooses at His will. Thus, Menashe, who caused others to sin and thus was not deserving of forgiveness (see Rambam as cited above), was granted a Divine pardon as a chesed.

Conversely, the gemara on Chagigah 13a tells us about the story of Elisha ben Avuya, commonly known as Acheir. He had been one of the great Rabbinic leaders of his time, and was one of the four Rabbis who was nichnas l'pardes, who delved into the secrets of the Torah. As a result, we are told that he was kotzeitz b'nitiyot, basically meaning that he went astray of the proper path. The gemara cites conversations between Acheir and his loyal student Rav Meir, who was constantly trying to bring his teacher to repent. Each time, Acheir's response was "I have already heard from beyond the Divine curtain: Return wayward children - except for Acheir." Teshuva as a chesed means not only that Hashem can grant it to whomever He desires, but also that He can deny it to whomever he desires. Acheir's sin was not one of those listed by the Rambam among those who have no chance for teshuva; nevertheless we see that he was not allowed to repent.

These four cases have done little to further our progress. They still leave open the question as to whether teshuva is really a din or really a chesed. Our next step will be to look at cases brought down l'halacha by the poskim to see how teshuva is viewed in the practical realm.

The Shulchan Aruch spends several halachot discussing which kohanim may and may not bless the Jews. He states (O.C. 128:35) that a kohein who has killed a person may not ascend the podium (duchan) to bless the people, and neither may one who had a status of Mumar l'avoda zara (a person who is known to worship idols; in general, the status of such a person is that they are not trustworthy with regard to any of the mitzvot; O.C. 128:37). However, we are told that one known to worship idols may bless the people if he has repented, although one who murdered, even if it occurred by accident, may not bless the people, even if he has done teshuva. Why the difference? More than that, it would seem that if one of the two would be able to regain his eligibility, it would be the former, whose action may have only been a mistake, and not the latter, whose actions are internal and render him invalid with regard to all mitzvot! The Be'er Heitev (O.C. 128:60) offers a reason as to the invalidation of the former that will shed light on this issue. He claims that a murderer is always invalid because of the halachic concept of ein kateigor na'aseh saneigor - that we do not allow the accuser to become the defender, or, in plain terms, we do not utilize something that was part of our sins to defend ourselves before Hashem and to do mitzvot with (this is why the kohein gadol did not wear gold garments into the Holy of Holies on Yom Kippur - they served as a reminder of the sin of the Golden Calf). Thus, one who murdered has hands that are tainted by sin, and thus cannot use those same hands to bless the Jewish people. Even teshuva does not erase this black mark (Rav Yoseif Dov Soloveitchik, in Al HaTeshuva echoes this idea concerning the duality of sin. He claims that each sin requires repentance and it requires a full spiritual cleansing, as each sin is composed of both the actual sin and the "black mark" on one's record that it leaves behind even after one has gone through all of the motions of teshuva. See Al HaTeshuva, pp. 17-33). By contrast, one who has worshipped idols eradicates the all traces of his former evils when he repents. The sin was effectively an internal one, and his teshuva cleanses his soul and transforms him into a new individual, one who is fit to bless the Jews on behalf of Hashem. What is important for us to note in this discussion is that teshuva here is guided by a set of fixed rules - it can be effective so long as we are not making a kateigor into a saneigor. As we have noted earlier, a chesed cannot be subject to such rules. Only if teshuva is a din, only if it is part of a fixed system of divine justice, can it be bound by rules and limitations.

The last case that we will focus on is of a similar nature. Concerning who may serve as a shliach tzibbur, the Shulchan Aruch again lists several categories of disqualifications. Among those who may not lead the services (keep in mind that the role of shliach tzibbur is not based on who arrives first to davening; rather it should be filled by a person who is fit to represent the congregation to Hashem) is one who has had a "bad name" or bad rumors spread about him, even in his younger years (O.C. 53:4). A discussion then ensues about his status if he has since done teshuva. The Be'er Heitev (O.C. 53:7) says that if he has done teshuva he may lead the services, even l'chatchila (optimally), while the Mishna Berura (O.C. 53:16) claims that such a person may only serve as a shliach tzibbur in a b'diavad (less than optimal) situation. What may lie at the root of this discussion is exactly our issue. If teshuva is a din, the we can rely on the fact that a person who has done teshuva has been cleared and may serve as a shliach tzibbur without question. However, if it is only a chesed, then we should perhaps be more reluctant in allowing someone to assume such a role even if he has done teshuva, for perhaps his teshuva was not accepted, perhaps he was not deemed worthy of the divine kindness of forgiveness.

So we return yet again to our question - what is the nature of teshuva? In reality, both of our answers are correct. The very fact that their even exists such a concept called teshuva - that in itself is a chesed, is a tremendous act of divine goodness. However, once such a concept exists in the world, then it operates as a din. Once we know that Hashem has given us the opportunity to do teshuva, the we can assume that He will answer our prayers and grant us forgiveness.

So what about the one who says echteh v'ashuv? Why does he not even get the chance to repent? The answer now becomes clear. Most willful sinners desire to do a specific act, and that desire overpowers their sense of what they know to be correct. They are perhaps bad, perhaps weak, but still deserving of heavenly mercy. However, one who says that "I will sin and then I will repent": is overcome not by a desire to do a specific act, but by a drive that militates against the entire divine system. He essentially says that Hashem has created a "free pass" called teshuva, and he am now going to abuse that gift by assuming that it will be granted to him regardless of his actions. Such a person acts against the very essence of teshuva at its first level, at its chesed level, not its din level, and thus he is denied even the chesed. Menashe could get forgiveness even if he was not deserving al pi ha-din, because he had not denied the essence of teshuva. However, one who says echteh v'ashuv can no longer rely on Hashem granting him the favor of repentance and forgiveness.

As a final point, we are told that Yom Kippur is one of the two happiest days in the Jewish calendar. How is this so? Yom Kippur certainly is the most serious day, the day when are lives hang before us and we spend all of our energies focused on praying and begging Hashem for repentance. How is this so joyful? The truth is that by understanding this dual nature of teshuva we can understand this statement. Throughout the entire day of Yom Kippur, we must see teshuva as a chesed - perhaps we will be granted forgiveness and perhaps we will not. However, once the day is done, once we have drained every ounce of our energies into the activities of the day, then we are able to view teshuva as a din. We able to be confident that our prayers have worked and that we have been pardoned in the heavenly court. It is then that we can shout and sing, and it is at that moment that the totality of the day culminates in a moment of supreme joy.

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