Devar Torah given at Kehilat Hadar
After hearing of the Israelites’ wondrous escape from Egypt, Jethro brings Tzipora and her sons to meet with Moses, his son-in-law. He must have been expecting that their future would be bright, in a family headed by the leader of the people to whom God has shown favor.
One day later, he is not so optimistic. Moses, it seems, spends all day every day with the people “standing on him”, awaiting his guidance. What time will he have have to spend with his spouse and raise his children?
Jethro asks Moses what all those people could possibly want, and learns that they come to him “lidrosh Elohim” (Ex. 18:15). To seek something of God.
By reference to other applications of this phrase in the Bible, Ramban explains what kinds of things the people were after: they wanted to know if they would recover from an illness like the Aramean King Ben Hadad (one of the Bible’s less popular Kings), or why they were in pain, like Rebecca, or where to find a lost animal, like Saul. The Baal haTurim summarises –
מלמד שכל צרכיכם היו באים לדרוש א-לוהים
this is here to teach that for all their needs, they came to Moses to ask God. (Baal Haturim ad loc,)
As Jethro points out, having everyone approach Moses will all their needs is good for neither Moses, nor for the people. (v.18) Being asked about lost donkeys all the time may not have been God’s idea of a well-functioning hierarchy either.
We may presume that Jethro is looking out for Moses and his family, but it also does not seem that the people are making the progress that is expected of them. They are meant to be engaged in a process of moving meavdut leherut, from slavery to freedom – from dependency to self-sufficiency.
There are, I believe, not just one but two solutions to the problem of the Israelites’ reliance on Moses in our parasha. The first follows immediately after the problem is explained: Jethro, as the first management consultant, recommends instituting a system of deputies. And, in the second half of the parasha, God, as supreme lawgiver, in thunder and smoke, transmits the body of Jewish law to the people. There is the divine solution and the mundane solution. And both are necessary.
We read in public and study the Torah’s laws, that begin with the Ten Commandments in this parsha, and continue in Parashat Mishpatim next week and scattered throughout subsequent parshioyt the rest of the Torah. And so we know a little about their scope and jurisprudential approach.
But what of Moses’ new deputies? The ones who would deal with all the “small” matters, and refer the “great” or “difficult” on up to Moses? (vv. 22 & 26) Moses may be basing his rulings on the Torah, or on direct communication with God (as in the later case of Tzeofehad’s daughters), but how did these deputies decide the small cases? There is an extensive debate in the commentaries about when Jethro’s system was proposed and instituted (rashi, ramban, ibn ezra, etc on 18:1 and 18:13). Even if this system was implemented after the giving of the Torah, without some serious study first — which is absent from the text — would all these new judges, even if they were honest and God-fearing, know how to adjudicate to the Torah’s laws?
The Netziv has a solution to this problem (Harhev davar on 18:23) He suggests that the judges that were appointed in this parasha, unlike Moses, did not make judgements based on Torah law. How then did they make decisions? Picking up on Jethro’s claim that the people would go away “bashalom” – in peace (v.24) – under the new system, he refers to a passage in the Talmud (Sanhedrin 6b) where Moses is associated with a strict approach to legal questions:
משה היה אומר יקוב הדין את ההר
Moses would say “let law pierce the mountain”
This is contrasted with the approach of his brother, Aaron:
אבל אהרן אוהב שלום ורודף שלום ומשים שלום בין אדם לחבירו
But Aaron loved peace and pursued peace and made peace between a person and their fellow.
How should our judges put “pursuing peace” into action?
רבי יהושע בן קרחה אומר מצוה לבצוע שנאמר…ומשפט שלום שפטו בשעריכם…והלא במקום שיש משפט אין שלום ובמקום שיש שלום אין משפט אלא איזהו משפט שיש בו שלום הוי אומר זה ביצוע
Rabbi Yehoshua ben Korha said: it is a mitzvah to attempt arbitration, as it says in Zechariah (8:16), “and you shall judge justice and peace within your gates”… Yet peace and justice tend to conflict: what is justice that coexists with peace? We must conclude that this is arbitration.
Arbitration?! Why, if the Israelites have access to the Torah and to God’s direct clarifications of law via Moses, would the Netziv claim that they solved problems by arbitration?
The Torah’s parallel story of the delegation of Moses’ authority, we might note, is very different. In Numbers 11 parashat behaaloteha, God takes some of Moses’ “רוח” – spirit – and places it on the seventy elders. They then display their new spiritual authority by speaking in ecstasy.
In contrast, there is nothing supernatural – or even scholarly – about the judges in our parasha, according to the Netziv. These judges do not need in-depth knowledge of the law, they just need to be respected and trustworthy. The people, in short, need to rely less on Moses and law from above – they need more peer-administered justice. They need to work out their problems themselves.
The law from God is chiselled in stone and written on parchment. It is black and white and its authority is imposed from above and accepted quite passively by the people.
A received tradition of law is a necessary piece of a healthy society, but it is not sufficient for harmonious living alone. We also need a way to amicably resolve disputes without resorting to a decision from on high.
The conflict between human civilisation and legal absolutism is explored in the following midrash. The ministering angels debated whether or not humanity should be created. One of those opposed was Truth.
ואמת אומר: אל יברא, שכולו שקרים.
Truth said: do not create [humanity], for it is full of deceit.
מה עשה הקדוש ברוך הוא? נטל אמת והשליכו לארץ, הדא הוא דכתיב (דניאל ח): ותשלך אמת ארצה.
what did the Holy Blessed One do? God took Truth and through him to the earth. (Bereshit Rabba 8:5)
According to this midrash, God recognised, as perhaps Jethro did, that humanity is indeed ultimately incompatible with absolute truth, with pure divine law. We sometimes need a compromise or two to live peaceful lives.
Knowing that we have “the Truth” is a seductive feeling. Our parasha suggests that, even if we do have access to God’s direct ruling on any particular question, we cannot always seek it out. Just as the Israelites also needed arbitrating judges, we too also need ways to solve disputes that can allow peace to reign, even at the expense of the absolutes to which we declare fealty.
May our faith in legal and ethical convictions be strong, and always moderated by the peace seeking ways of Aaron and of Jethro’s judges.