Parshat Shoftim includes a dire warning for those idol-worshiping nations with whom the Jews are unable to establish a peace treaty:

דברים פרק כ
(יג) … וּנְתָנָהּ ה’ אֱלֹהֶיךָ בְּיָדֶךָ וְהִכִּיתָ אֶת כָּל זְכוּרָהּ לְפִי חָרֶב: (יד) רַק הַנָּשִׁים וְהַטַּף וְהַבְּהֵמָה וְכֹל אֲשֶׁר יִהְיֶה בָעִיר כָּל שְׁלָלָהּ תָּבֹז לָךְ וְאָכַלְתָּ אֶת שְׁלַל אֹיְבֶיךָ אֲשֶׁר נָתַן ה’ אֱלֹהֶיךָ לָךְ: … (טז) רַק מֵעָרֵי הָעַמִּים הָאֵלֶּה אֲשֶׁר ה’ אֱלֹהֶיךָ נֹתֵן לְךָ נַחֲלָה לֹא תְחַיֶּה כָּל נְשָׁמָה: (יז) כִּי הַחֲרֵם תַּחֲרִימֵם הַחִתִּי וְהָאֱמֹרִי הַכְּנַעֲנִי וְהַפְּרִזִּי הַחִוִּי וְהַיְבוּסִי כַּאֲשֶׁר צִוְּךָ ה’ אֱלֹהֶיךָ:

Total havoc and wanton destruction. Except for one thing …

(יט) … לֹא תַשְׁחִית אֶת עֵצָהּ לִנְדֹּחַ עָלָיו גַּרְזֶן כִּי מִמֶּנּוּ תֹאכֵל וְאֹתוֹ לֹא תִכְרֹת כִּי הָאָדָם עֵץ הַשָּׂדֶה לָבֹא מִפָּנֶיךָ בַּמָּצוֹר: (כ) רַק עֵץ אֲשֶׁר תֵּדַע כִּי לֹא עֵץ מַאֲכָל הוּא אֹתוֹ תַשְׁחִית וְכָרָתָּ וּבָנִיתָ מָצוֹר עַל הָעִיר אֲשֶׁר הִוא עֹשָׂה עִמְּךָ מִלְחָמָה עַד רִדְתָּהּ:

Fruit trees. Who would have thought? Of all the things to preserve. That perplexity has been dealt with extensively by the commentaries on the Chumash. But what perhaps makes the question stronger is that this is not the first time we have met fruit trees in Chumash:

בראשית פרק א
(יא) וַיֹּאמֶר אֱלֹהִים תַּדְשֵׁא הָאָרֶץ דֶּשֶׁא עֵשֶׂב מַזְרִיעַ זֶרַע עֵץ פְּרִי עֹשֶׂה פְּרִי לְמִינוֹ אֲשֶׁר זַרְעוֹ בוֹ עַל הָאָרֶץ וַיְהִי כֵן:

Hashem ordered fruit trees that would themselves taste like fruit – edible trees. But the trees disobeyed, as we see in the very next Pasuk:

(יב) וַתּוֹצֵא הָאָרֶץ דֶּשֶׁא עֵשֶׂב מַזְרִיעַ זֶרַע לְמִינֵהוּ וְעֵץ עֹשֶׂה פְּרִי אֲשֶׁר זַרְעוֹ בוֹ לְמִינֵהוּ וַיַּרְא אֱלֹהִים כִּי טוֹב:

Attentive to its own self-preservation, the tree offered its tasty fruit to the world while ensuring that it would not itself be eaten. Rashi points out the tree’s sin and consequence:

רש”י בראשית פרק א
(יא) עץ פרי – שיהא טעם העץ כטעם הפרי, והיא לא עשתה כן, אלא (פסוק יב) ותוצא הארץ עץ עושה פרי, ולא העץ פרי, לפיכך, כשנתקלל אדם על עונו, נפקדה גם היא על עונה, ונתקללה:

It is unclear to what later punishment Rashi refers, perhaps וְקוֹץ וְדַרְדַּר תַּצְמִיחַ לָךְ, but this is more a punishment to man than it is to the tree. Rashi’s hint that the punishments of man and tree are intertwined (“כשנתקלל אדם על עונו”) smacks of “כי האדם עץ השדה,” the elusive reason given in Parshat Shoftim as to why we should not cut down fruit trees. We will return to the man-tree relationship later.

Taking Rashi at his word that the tree was punished, its punishment is not conspicuous or overtly satisfying. The Nachash was made to crawl on its belly (“על גחונך תלך”); the moon was made small when it complained about two kings sharing the same crown. Now that the Jews are about to return to Israel, perhaps the fruit tree can finally receive its comeuppance – but Hashem says No, keep it around. Of all creations, this one has been disobeying Hashem since its creation! What gives? Why can’t we at least destroy it now, when we’re destroying everything else?!

A while ago I came across a fascinating article, “Bernie Madoff, Free at Last,” published in New York Magazine on June 6, 2010. The article paints an unexpected portrait of the man who made off with so many people’s money:

For Bernie Madoff, living a lie had once been a full-time job, which carried with it a constant, nagging anxiety. “It was a nightmare for me,” he told investigators, using the word over and over, as if he were the real victim. “I wish they caught me six years ago, eight years ago,” he said in a little-noticed interview with them.

And so prison offered Madoff a measure of relief. Even his first stop, the hellhole of Metropolitan Correctional Center (MCC), where he was locked down 23 hours a day, was a kind of asylum. He no longer had to fear the knock on the door that would signal “the jig was up,” as he put it. And he no longer had to express what he didn’t feel. Bernie could be himself.

Sometimes not being punished is a worse punishment than being punished. The relief, finality, and closure that come from punishment can be a cathartic experience. The punishment of the fruit tree is to not be punished, but to go through the rest of time wallowing in its own guilt, so to speak, unable to unburden itself of its past, correct its error, and move on. Picture a student who knows that his teacher knows that he cheated. The time spent waiting for the teacher to finally hand down the punishment can be worse than carrying the punishment out. The fruit tree, like Bernie all those years and the student burdened by his guilt and unable to deal with it constructively, does not have the benefit of moving on after the gift of the Teshvua process.

Man and tree are linked negatively in Bereishit (כשנתקלל אדם על עונו, נפקדה גם היא על עונה) and positively in Shoftim (כי האדם עץ השדה) because what the tree so sorely misses is the quality which most powerfully defines mankind. There is nothing more human than the need to move beyond one’s past transgressions, no feeling more satisfying than the sense that one has conquered his checkered past, survived, and can thrive once more. Maligned adulterous politicians who mount great comebacks know this; cheating athletes who take a suspension rather than spend years denying and equivocating know it as well. כשנתקלל אדם על עונו is an ambiguous notion not only because the tree wasn’t really punished but because Adam wasn’t really punished either – his punishment was to roam the earth in a puddle of his own guilt for hundreds of years. Chava, the Nachash, and the moon were punished more concretely – but Adam and the tree met a similar fate, that of the wandering, guilty soul consigned to feel bad but never really recover from what he has done. Neither had a Teshuva process. Neither had a Yom Kippur.

We enter Elul and the Aseret Yimei Teshuva, then, best with a sense that גילו ברעדה, rejoice in trembling, is not a statement of opposite emotions co-existing uneasily, but an expression of two halves of the same coin that exist in tandem. We rejoice because we can tremble. We take pleasure in the fact that we can have our day in court, plead our case before our Creator, develop a rehabilitation plan, and move on to Succot אך שמח, unburdened from our past. The student dreads the final exam, but he would not give up the feeling that he has the day after, assuming he believes he did well. When the Gemara describes Yom Kippur as one of the happiest days of the year, that is because the feeling of satisfaction that comes from forgiveness unburdens us in a way that no other day equivalently can. We are made human by our ability to do Teshuva. Adam, like the tree, could not do that; it is in that sense that they were punished (or not punished) together. The tree stands as an immortal legacy of the kind of burden that Adam carried for hundreds of years, and in this we share in the tree’s pain – כי האדם עץ השדה. But beyond Adam, unlike the tree, mankind has since discovered the liberating power of Teshuva and how freeing it can be. Mankind and the tree share a common origin, but man has come so far since those early days. We preserve the tree so that we can remember always that gulf between us and the liberating power of Teshuva that has made that gulf so wide.

May we strive to feel the embrace of Teshuva this year and every one after.