We open the Shemoneh Esrei by referring to Hashem as “Hashem Elokeinu vEilokei avoseinu — Hashem, our G-d, and the G-d of our ancestors….” Three distinct ways of perceiving G-d are being given here:

The tetragrammaton refers to the G-d Who “Will be – Is – Was” (taking the letters as a contraction), who is “the cause of existence” (taking the name as a word, the causative form of /הוה/ — to exist), and it’s the name of G-d used in Tanakh when the story is emphasizing Middas haRachamim — Divine Empathy. It is viewing Hashem as causing rather than being of existence, so transcendent from it that He is above time, and thus not bound to deal with us through general rules, but with case-wise addressing of our needs. We’re describing a G-d Who is so transcendent, he has the wherewithall to be immanent and available to all. G-d can care about the actions of a puny human on one not particularly interesting planet in one galaxy among billions and billions because He has the capacity to care about everything.

E-lokim is G-d as Legislator — Middas haDin (Justice). The leaders of the Benei Cheis are called elohim, and in Shemos 21:6 a slave-owner whose slave refuses freedom is told to bring him before the court — “haelohim”. But then how does E-loheinu differ from E-lokei avoseinu?

I don’t know if this is what the Men of the Great Assembly meant when they laid the groundwork for Shemoneh Esrei, but it’s what I’m thinking of when I say the words (on days when I’m actually thinking).

Hashem is the legislator of two kinds of law: natural law and moral law. Everyone is subject to natural law. Free will does not include choosing whether or no I will fly today. However, moral law is subject to choice. Hashem said, “Do not commit profiteering”, but someone could easily choose to overcharge an unwitting customer.

Since all are subject to natural law, I associate that with E-lokeinu, our G-d. But what makes our forefathers “The Avos” is their election to follow more law. Thus I think of E-lokei avoseinu as referring to Hashem as its author.

Similarly, the The E-lokim of Bereishis pereq 1 refers to Hashem as author of natural law. This description of creation runs from light and culminates with man, making man part of the natural order. The E-lokim of the Hashem E-lokim in pereq 2 is in dialog with man, addresses His loneliness, etc… It refers to the Author of moral law.

Eliezer Eisenberg (“Barzilai“) recently blogged something (“Pharaoh’s Impenetrable Heart“) that made me think about this distinction.

Teshuvah is generally understood as a function of Middas haRachamim, rather than Midas haDin.

But Hashem judged Yishma’el “ba’asher hu sham — as he was there”, as we hear in the Torah reading for the first day of Rosh haShanah (Bereishis 21:17) Divine Justice is not in terms of what the person did in the past, but who he is in the present. And teshuvah does change that.

(See the booklet, “Aspaqlaria – Aseres Yemei Teshuvah”, pp 41-44, for a discussion of how the state of one’s soul can be seen as directly causing one’s fate, and pp 47-49 for a discussion of how that discussion is consistent with seeing Hashem as responding to our actions. Along the way, I cite two causal approaches: (1) a person’s sins scar his soul [R’ Yonah, Ramchal, R’ Chaim Volozhiner] or (3) dirty it [Ikkarim, Ran]. This broken soul or soul that has a blockage from receiving Hashem’s Good therefore suffers. Both approaches presume that it’s one’s spiritual state, not one actions, that are judged.)

Human court and the heavenly tribunal have different jobs. And for that matter, they judge different things. “Ba’asher hu sham” is said of the Creator, not man. People do not assess the health of a person’s soul (nor are we able to), they judge his actions.

If a murderer who since did complete teshuvah is judged by a court of rabbis here on earth, the teshuvah makes no difference do them. They’re judging actions. But if that person is truly as far from being capable of murder as the rest of us at the time of his death, and he dies without ever facing beis din, his judgment in Hashem’s “court” does reflect that teshuvah. Because Hashem judges who he is, not actions.

What places teshuvah beyond justice is not that the court looks at the healed soul differently than has he never done teshuvah. It’s that we can change to begin with. That we can alter the trajectory of our lives. Quitting smoking didn’t “just” take a lot of will-power, it literally took a gift from the Almighty. And that gift is the Divine Mercy associated with teshuvah.

And so, teshuvah is a middas haRachamim insertion into a middas haDin process. The outcome is din, the possibility of reaching that outcome required Rachamim. “Rachamim shebaDin.” I believe what is being obscured by Divine Mercy is not the E-lokei avoseinu, Author of moral law, but E-lokeinu, Author of natural law. Teshuvah is not merciful by providing a din-violating positive judgment, but by providing a din-violating alternative to remaining on the path one was once taking. It doesn’t provide the unfair, it provides the otherwise impossible.

Similarly, the book in the metaphor “vekhol maasekha basefer nikhtavim — and all your actions are written in the book” (High Holiday Machzor) is probably a reference to one’s own soul. Actions change “ba’asher hu sham“, which in turn changes how he is assessed.

I personally prefer the approach of the Ramban and the Seforno to answering the question of Hashem hardening or strengthening Par’oh’s heart. The obvious question is whether Hashem robbed Par’oh of free will. And if so, could Par’oh be judged for not doing teshuvah after the option was taken from him?

However, another approach is given by the Rambam, that a person can be so evil that his punishment is that very inability to do teshuvah. Quoting Teshuvah 6:3:

אפשר שיחטא אדם חטא גדול או חטאים רבים עד שיתן הדין לפני דיין האמת שיהא הפרעון מזה החוטא על חטאים אלו שעשה ברצונו ומדעתו שמונעין ממנו התשובה ואין מניחין לו רשות לשוב מרשעו כדי שימות ויאבד בחטאו שיעשה.

It is possible for a person to sin a great sin or many sins until the judgment is placed before the True Judge that the payment should be upon the sinner for those sins which he did by his own will and knowledge. That they withhold from him teshuvah, and do not give him permission to return from his evil, so that he should die and be lost with the sin that he will do.

Rav Yisrael Salanter (Kokhevei Or 79) quotes this Rambam, as part of defining three levels: Hashem helps most people do teshuvah. For particularly bad sinners, Hashem arranges life such that he doesn’t have opportunity. And finally the Rambam’s level that even the ability itself is taken from the sinner.

I would take RYS Salanter as saying that Hashem does not assist with this miracle in allowing teshuvah to happen for the evil, and keeps this miracle altogether from the truly evil. But why not? “Lo chafotz bemos hameis, ki im beshuvo midarko vechayah — [Hashem] does not desire the death of the dead, but that he return [does teshuvhah] from his way and live.” Hashem Himself prefers teshuvah!

I think (the Rambam and RYS don’t say or imply the following, it’s just my conjecture to resolve his statement with that quote from Bereishis about how Hashem judges) that we are referring to the sinner who so internalized his evil that such a change would be a change in the person’s essence, not some incidental attribute. Par’oh couldn’t do teshuvah because at that point, a post-teshuvah person wouldn’t be Par’oh anymore. The only way his soul could be redeemed is through the process of punishment in the afterlife.