Devarim begins Moshe’s final speech to Bnei Yisrael. In it, he goes through the nation’s history from the Exodus, warning them to observe HaShem’s Torah faithfully, and then he goes on to repeat many of the mitzvos we have been given so far. This is why the chumash is called ‘mishneh torah’ – the repetition of the Torah; hence ‘Deuteronomy’ (the root ‘due’ meaning ‘two;’ duo, duel, duet, etc.) A major difficulty when learning Devarim is the way that previous events seem to be presented differently. To take one example, we learnt in parshas Chukas that it was for the hitting of the rock that Moshe did not go into Eretz Yisrael, but in our sedra (1;37) it seems that it was the sin of the spies that caused this result. Thus, when it comes to parshas Devarim we are forced to reconcile two presentations of an event and in doing so often it is necessary to re-evaluate perceptions.
The event that we will attempt to tackle is that of Yisro’s advice. In parshas Yisro, Yisro (Moshe’s father-in-law) comes to join Bnei Yisrael and is shocked to see Moshe Rabeinu judging the people all by himself all day long. Consequently, Yisro suggests an entire new judicial system to be set up, whereby there would be different levels of judges (one for each thousand people, one for each hundred, etc) – if a lower judge did not know the answer to the case then he would pass it to the higher judge, with Moshe Rabeinu being at the top of the hierarchy. (We had that many Jewish lawyers in those days too!) The aim was seemingly to alleviate Moshe’s time constraints so he could focus on other matters. Finally, we are told that Moshe implements this idea – ‘and Moshe listened to the words of Yisro and he did everything that he said’ (Shemos 18;24). That is the basic outline of the turn of events in parshas Yisro.
However, in parshas Devarim (1;9-18) we are given a different report of what happened, with at least three differences. First and foremost, Yisro’s name is not mentioned here as the person who came up with this plan. Why did Moshe, the most humble person to have ever lived, imply that this was his own idea and not that of Yisro? Secondly, whilst in parshas Yisro the reason for the plan is given as saving the time of Bnei Yisrael and Moshe Rabeinu, in parshas Devarim Moshe tells us that the reason for the new judicial system was because Bnei Yisrael were troublesome in how they brought cases in front of Moshe Rabeinu, and they did not accept the judgment very well; Moshe bemoans ‘how can I handle your troubles, burdens, and arguments’ (1;12 & Rashi). There is also a third difference; that in parshas Yisro we are told that it was Moshe who selected the judges, whilst in Devarim we are told that Moshe asked each tribe to select their judges. How can one reconcile these differences?
In order to fully tackle our questions we need to carefully examine what exactly Yisro’s advice was and what Moshe implemented as a result.
In parshas Yisro, it is clear that Yisro asks Moshe why he is spending all day judging people’s cases [‘what is this thing that you are doing to the people…’ (18;14)]. Moshe’s response is (18;15) ‘the people come to me to seek HaShem.’ Moshe was replying that it is not true that all the visitors are there to hear their legal cases; many come to learn Torah and receive advice, and so that I should daven for them too (Ramban, Malbim, Maharsha). Yisro’s idea was to have a separation of labour; Moshe would do the job of teaching Torah and spiritual advice, whilst others would do the job of deciding legal cases (Maharsha shabbes 10a). This is the meaning of Yisro’s words ‘you warn them the laws…and the path they should lead…’ and then appoint people to do the judgment. ‘All the big things should come to you and all the small things they will judge’ (18;22). Yisro called the teaching of Torah ‘the big things’ – which Moshe would be in charge of. But the ‘small things’ (ie legal judgments) would be handled exclusively by the appointed judges, and not by Moshe whatsoever. However, Moshe departs from the suggestion in part, and instructs ‘the difficult matters’ (18;26) to be brought to him. Moshe makes sure that he has some part to play in the judicial system, unlike Yisro’s suggestion. This is hinted at by the opinion of Rabbi Elazar Hamodai in the midrash (mechilta), which explains pasuk 24 ‘and Moshe listened to the voice of his father-in-law, and he did like HaShem told him;’ Moshe did depart from the original plan somewhat.
But why did Moshe depart at all from Yisro’s advice? And why was it such a significant change to warrant omitting Yisro’s name from parshas Devarim?
We shall base our answer on something the Malbim points out in parshas Yisro. His view is that Yisro joined the Bnei Yisrael before mattan torah, and as such there was no legal framework or commandments about how to judge yet. So how could Yisro advise the establishment of a legal system; what would it be based on if they had not been given the Torah yet? The Malbim answers that Yisro felt that people could judge based on their own logic, and could thus determine what was truly correct in each case. This is why Yisro lays down a requirement of judges to be ‘nevonim’ – clever and intuitive people; for their mind has to be up to the task of judging according to their logic and reaching a correct verdict as a result. This, we shall see, is a major philosophy of Yisro in life – the belief in the power of one’s own sechel (logic). This includes both the belief in the capability of the power of one’s sechel to arrive at the true conclusions, as well as the belief that when one has to find truth on one’s own then it is more of a challenge and thus one could get more reward for fulfilling this task. Let’s illustrate Yisro’ s belief in one’s own sechel…
Firstly, Yisro himself lived such a life. He knew every god under the sun before he chose Judaism (Rashi 18;11); he himself was able to use his sechel to make a correct evaluation in choosing to convert. More shocking is that the midrash reveals that Yisro wanted Moshe to swear that his first child would be brought up as an idol worshipper / without a bris milah (brought in Maharsha nedarim 32a). And Yisro had this idea after he had already chosen the path of Judaism! Why did he want to make Moshe swear to do such a thing? Again, it stems from the belief of the capability of one’s sechel. Yisro wanted his grandson to be like him; to experience idol worship only to then reject it in favour of Judaism. That way, Yisro reasoned, the child would have undergone a bigger challenge in life and would have a greater commitment to Judaism. In fact, this is the reason that Yisro did not want to go into Eretz Yisrael with the Bnei Yisrael, despite Moshe’s insistence that he stay with them (Bamidbar 10;29-32). The midrash (mechilta shemos 18;25) relates that Yisro’s response to Moshe’s pleas was ‘a candle only shines when it is in a dark place. What can a candle amongst the sun and moon; you (Moshe) are the sun and Aharon is the moon.’ What Yisro was saying is that it would be no challenge for him and he would have nothing to achieve if he stayed with Bnei Yisrael and went into the Land now. Rather, he was going to return to his family and convert them to Judaism; in that way, he would have a challenge to face and be able to ‘shine his light’ in a place of darkness. Thus, we see four examples of Yisro believing in the primacy of the power of one’s own sechel and its ability to chose truth; even amongst self-inflicted challenges.
Moshe knew that to subscribe to such a philosophy was dangerous and incorrect. One must first realise and acknowledge a Higher logic of HaShem and that one’s own logic has limits and might not always surpass challenges. Additionally, one does not give themselves tests, no matter how great the outcome would be in succeeding. This can be seen from the Rambam (hilchos teshuva 2;1) who writes that complete teshuva is when one is faced with exactly the same situation and with the same urges as when they did a sin previously, and manages to overcome temptation and not sin this time. But even so, one is not meant to put themselves in such a situation again on purpose. Thus, Moshe used some of the technical advice of Yisro, but not the philosophy and spirit behind the advice…
Moshe only set up judges after the Torah was given (Malbim), for he knew that judgments had to be made according to the Torah’s logic, and not just based on human logic. [A great example of the vast difference is via the Rambam, who writes (hil. yesodei hatorah 8;2) that we rely on the testimony of two witnesses to decide a case purely because the Torah told us to, even though the witnesses could be lying. According to human logic, we would not rely on witnesses, but Torah logic says that we must.] This is also why Moshe does not look for ‘nevonim’ (wisdom) in his selection of judges, for the judgment is not to be based purely on the judge’s own logic and sechel, but rather judged against HaShem’s Torah and its laws of judgment. In fact, Chazal tell us that when a beis din is judging, HaShem comes and rests within them to make sure they make their decision correctly; it is never via their own logic. Perhaps this is also why Moshe ensures that he is made part of the judicial system as well as fulfilling the role of Torah teacher, in order to show that Torah and mishpat (judgment) are connected; they both ultimately come from Higher logic. Moreover, perhaps this is why Moshe sets up the judicial system because of Bnei Yisrael’s bad behaviour and not purely based on lack of time. The reason is that since the judgment was now going to be based on Torah’s logic and not the judges’ human logic, people could take advantage and argue that the judge interpreted the Torah logic wrongly, or make trouble by trying to cheat the system. All this will explain why Moshe omits Yisro’s name from parshas Devarim; because Moshe did not fully comply with Yisro’s suggestion – neither in spirit nor in every aspect of the suggestion.
Lastly, this also explains a difference that the Ramban (Shemos 18;20) points out. He points out that Moshe appointed court bailiffs (shotrim) too, whilst Yisro had only suggested appointing judges. According to what we have explained above, this fits in well. Since the judgment was now based on Torah logic, and Moshe thus saw that the people were being difficult in accepting judgements that they did not ally with, Moshe had to appoint bailiffs too in order to make sure that the judgments were complied with and that people submitted themselves fully to the new court system. And perhaps this is why Moshe had the individual tribes play a part in picking their own judges; to ensure that they would be more forthcoming to accept judgments if they had some form of association with them.
The practical idea for us to take out of this is ‘reishis chochmah yiras HaShem’ (tehillim 111;10) – that the first stage of our wisdom is realising that it all comes from HaShem and the willingness to delve into Torah and accept Higher logic. OK, we’ll have one short story then…The Rogerchover Rav was renown for taking a short time over davening and immediately returning to his non-stop Torah study. When asked why, he responded ‘It’s enough of HaShem hearing what I have to say. I want to hear what He has to say.’
Have a great Shabbes,
