Parshas Devarim; The King and I
Our sedra marks the beginning of Moshe’s final speech to klal yisrael before his death. In this speech, he revises several key events of the previous forty years. We are going to focus on part of one of those events. In parshas Yisro, we learnt of Yisro’s astonishment at the fact that Moshe himself was the sole judge for any cases and disputes that came up amongst the people. Determined to alleviate the situation, Yisro devises a judicial system with a hierarchy of judges. The first part of our sedra revises this event (albeit with a few key changes, which we shall not be speaking about), and allows us to ask an interesting question, which should be a catalyst for new areas of thought, and a particularly enlightening idea from the Ran.
What exactly was Moshe thinking when he originally set up the system with him being the sole judge; why did he not set up other judges too and thus allow the system to be more time-effective and effiecient? (and remember, there were others worthy of judging, hence their being selected as judges once Yisro’s idea was implemented).
One approach is that of the Abarbanel. He writes that Moshe had thought of Yisro’s idea well before Yisro, just that Moshe was waiting for Mattan Torah to set up the judicial system. This would be why Yisro’s name is not mentioned in our sedra as the founder of the judicial-system concept, for it was really Moshe’s idea. However, this merely switches the focus to another facet of our question; the people’s perspective. One does not need a beis din for every case; many cases involve halachic questions that can be decided by a knowledgeable Rabbi (as most of our questions are resolved nowadays). If so, why did the people wait in line for ages to bring their cases before Moshe Rabeinu when they could have tried to have their case resolved in a more time-efficient fashion by a competent local orthodox Rabbi?
We shall offer an answer based on a combination of ideas from the Rambam[1] and the Ran.[2] The Rambam writes that Moshe Rabeinu had the halachic status of a king. Bear this comment of the Rambam in mind; the relevance of this to our discussion will only become apparent after we share a fascinating idea of the Ran. The Ran points out that across Jewish history, there were two ways in which cases could be judged. We know that the Sanhedrin judged cases; as is their job description. However, we know that the king also judged. For example, there was the famous case when the two mothers came to Shlomo HaMelech for a judgment as to a disputed baby.[3] Similarly, the gemarra[4] tells us that David HaMelech had cases brought before him, and this flocking of the masses to David Hamelech to be judged was manipulated by Avshalom when he began his rebellion against David.[5]
The Ran reveals that there is a central difference between the judgement of a king and that of the Sanhedrin. The Sanhedrin follow the letter of the law, with no exception. For example, the penalty for stealing is that the thief pays back double of what he stole – and this does not take into account the motive for the theft. Thus, it makes no difference whether a person stole out of pure hatred for the victim of the theft, or if he stole to feed his hungry family. Each thief would have to pay back double. However, the judgment of a king is entirely different. In judging, a king is given the discretion to veer from the letter of the law if the circumstances dictate so. Thus, a king may allow a person who stole purely in order to feed his family to pay back less than double the amount of what he stole. In English law, this would be called a ‘court of conscience,’ or ‘equity.’ As an illustration of this, let’s take the case of Shlomo HaMelech mentioned above. The two mothers come to Shlomo, each claiming that the baby belongs to her. Shlomo HaMelech rules that the baby is to be cut up and split, and this way the true mother (the one who says that the baby should live, even if this means living with the other mother) is found. Now according to the strict letter of the law, such a tactic would never be used to find out who the mother is. But Shlomo HaMelech had the discretion to utilise this means to solve the case. Similarly, when Nassan HaNavi told David of a case whereby a rich man stole from a poor neighbour the only sheep that the poor person owned, David HaMelech ruled that this thief should be put to death and be made to pay fourfold for the theft. The penalty for stealing is not death, but David felt it a necessary punishment due to the circumstances of the case.[6]
This answers our starter questions. Why did Moshe initially set himself up as the sole judge (and the people flocked to him alone)? Because he had this advantage of being a king. This meant that he could veer from the strict letter of the law if the circumstances called for such a ruling.
We can use all of the above information to understand a central part of the aseres yemei teshuva (between Rosh HaShanah and Yom Kippur), as pointed out by Rabbi Reisman. During these ten days, we substitute the words ha’kel hakadosh for ha’melech hakadosh in the third bracha of our amidahs. In fact, if one were to mistakenly say ha’kel instead of ha’melech during this bracha in the aseres yemei teshuva, one must go back to the beginning of the shmonah esrei.[7] Indeed, if a Sefardi says the usual ending of melech ohev tzedaka u’mishpat instead of hamelech hamishpat during the ten days, he must also go back.[8] This strictness is not matched by the other additions during these ten days; if one misses out zachreinu lechayim or besefer hachaim… one does not need to repeat the shmonah esrei. If anything, one would have thought that it should be just the opposite; the additions of zachreinu lechayim and the like seem to have much more relevance to judgment and the severity of these ten days than a simple word-change from ha’kel to ha’melech. What is the big deal of missing out the word melech; why is it so grave an offence that we must repeat the amidah if we omit this ostensibly small change?
Rabbi Reisman answers in the same vein as we have explained above. The judgment of a king is qualitatively different from the judgment of a normal judge. Between the days of Rosh HaShanah and Yom Kippur, the worst thing that can happen to us is that HaShem judges us according to the strict letter of the law, like a normal judge. If this occurs, we barely stand a chance of being successful in judgment, for our sins are carefully weighed up and counted against our mitzvos, and the truth is not pleasant. Instead, we beseech HaShem to act with special favour towards us. We ask Him to take into account our extenuating circumstances, and we beg that our judgment be diluted and acted out favourably on account of our repentance and promise to be faithful to Him. What we are essentially asking for is that HaShem judge us not as a normal judge, but as a king; as a judge who has discretion to break the normal rules if circumstances dictate to do so. We ask for avinu malkeinu; a judgment from a king who is our father, and will thus have mercy upon us. This is why we can have the ‘audacity’ during ne’ilah of Yom Kippur to ask HaShem to ‘make for us an opening at the time of the closing of the gates’ (p’sach lanu sha’ar be’eis ne’ilas sha’ar); we are asking HaShem to break all the normal judicial rules in judging us mercifully. We ask him to judge like a king.
This is why omitting ha’melech in our davening is such an offence; because our goal is to try and engage HaShem to judge us as a king as opposed to using the letter of the law. Another way (more practical and appropriate for the three weeks) to achieve this is for us to break the normal rules in our interpersonal relationships; for us to show special mercy and compassion to others, even if they do not deserve it. That way, HaShem will shown mercy and compassion to us, regardless of whether or not we deserve it.[9]
Have a great Shabbos
[2] Drashos HaRan drush 11
[3] Melachim Alef, 3:16-28
[4] Gemarra brachos 4a
[5] Shmuel Beis 15:1-5. Avshalom would tell each person that came to judgment that they were correct in their claim, but that the king would not see their side of the story.
[6] Shmuel Beis 12. It turned out that the case never happened; Nassan was only using it as an analogy for David’s act with Batsheva.
[7] Shluchan Aruch Orach Chaim 582:1
[8] Shulchan Aruch Orach Chaim 582:1. Ashkenazim do not follow this; Rema Orach Chaim 118:1
[9] Gemarra Shabbos 151b
