Ba’Asher Hu Sham
Based on publication by Rabbi Joshua Flug
Bereshis (21,17) Yishmael had been sent out of Avrohom’s house and was dying of thirst in the desert. In response to his mother Hagar’s weeping, HaShem sent an angel to inform her that HaShem heard the boy’s outcry, and would spare him. The Midrash (Bereshis Rabbah 53:14) relates that the angels pleaded with HaShem to let Yishmael die, since in the future his descendants would kill many Jews. HaShem replied that since at that moment Yishmael was righteous, He could judge him only as of that moment באשר הוא שם.
The Yerushalmi (Rosh HaShana 1:3), after quoting the famous idea of R. Kruspedai (who in the Yerushalmi is called R. Kruspa) regarding the tzaddikim, beinonim and reshaim, notes that R. Chananiah asked: why do the beinonim need to hang in abeyance until Yom Kippur? Doesn't HaShem know what is going to happen? The Yerushalmi responds quoting R. Yehoshua ben Levi that HaShem only judges a person in the moment- באשר הוא שם.
The Zohar has a different approach to באשר הוא שם. The ב"ד של מעלה only punishes people who are above the age of twenty. Yishmael was only thirteen years old at the time. Even though he would be a rasha, he was only judged באשר הוא שם, at his current age.
Ramban (Bereshis 41,17) notes the derasha of Chazal on the pasuk and writes that the פשוטו של מקרא is that באשר הוא שם refers to the fact that Yishmael didn't have to go elsewhere to get water. HaShem brought it to him.
Maharsha (Rosh HaShana 16b) writes that Chazal derived their idea from the added word הוא. The word שם refers to a place and the word הוא refers to time.
The Limits of באשר הוא שם:
The Beraisa (Sanhedrin 72a) tells us that the בן סורר ומורה is killed for what he is going to do. The fact that he ate meat and drank wine is not enough to warrant death. The real reason why we kill him is that his bad habits will eventually cause him to become a bandit and therefore, the Torah states that it is better that he die innocent than die guilty.
Many meforshim ask (this is known as the question of R. Elya Mizrachi): Why don't we judge the בן סורר ומורה the same way Yishmael was judged- באשר הוא שם?
R. Elya Mizrachi answers that the בן סורר ומורה was already involved in bad behavior. It may not have been enough to put him to death by itself, but at the moment, he is not a tzaddik.
R. Menachem Azariah of Fano (Asarah Mamaaros 2,23) also follows R. Elya Mizrachi's approach and explains further that the current actions of the בן סורר ומורה are directly related to what he is going to do. He is being judged באשר הוא שם as well as על שם סופו. However, what Yishmael's children were going to do in the future is unrelated to Yishmael's current shortfalls. He also provides a different answer: we can judge a person based on his future actions, but we can't judge a person based on what his children will do.
R. Yaakov Reischer (Iyun Yaacov R.H. 16b) writes that one can distinguish between the judgment of ב"ד של מעלה and ב"ד של מטה. The ב"ד של מעלה can punish at any time. HaShem has the ability to wait until the person actually commits the act to punish him. However, the ב"ד של מטה has to follow specific rules. If the בן סורר ומורה steals or commits violent crimes without witnesses, there is nothing they can do to him. Therefore, the Torah gave the commandment to put the בן סורר ומורה to death when he violates the Torah in the presence of witnesses.
Parshas Derachim follows a similar approach and explains that in general ב"ד של מטה has much stricter guidelines and that is why it punishes people from the age of bar/bas-mitzvah and it punishes על שם סופו. ב"ד של מעלה is not as strict and only punishes from the age of 20 (and can be forgiving if a person does teshuva)
Chida (Sanhedrin 16b) writes that normally a person is judged באשר הוא שם. The בן סורר ומורה (glutenous and rebellious son) is the exception to the rule because he is the product of relations with an אשת יפת תואר. Because of his yichus, he is judged על שם סופו.
R. Baruch Frenkel Teomim (end of Bereshis) writes that violations of מצוות בין אדם לחבירו are much stricter that מצוות בין אדם למקום. The בן סורר ומורה is someone who wantonly violates מצוות בין אדם לחבירו and therefore, he is judged by his future activities. However, Yishmael's descendants causing the Jewish people to die of dehydration was not inherently a בין אדם לחבירו violation because it was based on a gezeirah min HaShamayim. It was, however, a violation of בין אדם למקום because they should have let someone else carry out that gezeirah.
R. Yisrael Y. Landau (Rosh HaShana 16b) notes the comment of Ba'al HaTurim who connects באשר הוא שם with באשר את אשתו in reference to Yosef and the wife of Potiphar. He explains that באשר הוא שם only applies when there are no underlying traits that would lead to the future transgression. If the individual allows the yetzer harah into his life, he can be judged for that now. This is the connection to Yosef. Just like Yosef didn't allow the yetzer harah to entice him to violate a prohibition, so too, Yishmael wasn't on the path to any aveiros and therefore he was judged באשר הוא שם.
R. Aharon Kotler (Parsha) presents a similar idea in explaining באשר הוא שם. He notes that someone might be rewarded or punished for the actions of his descendants if it is caused by his own middos.
Teshuva באשר הוא שם During the Yamim Noraim:
Rabbeinu Asher (Rosh) writes that the first "HaShem" in the thirteen middos harachamim refers to HaShem before we sin. He then asks: why do we need rachamim before we sin and answers that even though He knows that we will sin, he still only judges us באשר הוא שם.
Ohr HaChaim (Shmos 34,6) finds this answer difficult to understand. Is it really an act of mercy that HaShem doesn't punish us before we sin? If so, HaShem should have never created us because He knows that we will sin.
We can suggest that באשר הוא שם is actually a form of rachamim. As humans, we make all forms of judgments against others based on our own predictions about whether another individual will succeed or not. We associate people with guilt without even knowing if they are going to be guilty. HaShem not only knows that some of us will sin, he nevertheless bifurcates that knowledge and treats us on a different plain of reality. He gives us the free will to make the choice and until we make the wrong choice, He pretends that He doesn't know it's going to happen. The fact that he gives us a chance to beat the odds is a great act of rachamim.
באשר הוא שם as a Matter of Practical Halacha
Ma'aseh Rav HeChadash notes that the Vilna Gaon was opposed to using heter iska to lend money and charge interest. He also stated that if one is going to do so, one should not do so during from the beginning of the recitation of selichos until Simchas Torah because a person is judged באשר הוא שם. Even if he plans on doing so later, he still gains by not doing so during this time period.
This would also explain the minhag not to eat פת פלטר during Aseres Yemei Teshuva. Even though one plans on eating it afterwards, there is an element of באשר הוא שם in being more machmir during these days.
R. Asher Weiss (Sichos on Moadim) notes that while the primary reason for the reading of the 21st chapter of Bereishis on the first day of Rosh HaShanah is to read about Sarah giving birth to Yitzchak, a secondary reason is to read באשר הוא שם. We are telling HaShem that even though we may one day sin, please judge us like you judged Yishmael – באשר הוא שם.
