February 5, 2015
In this weeks sedra, the Netziv takes a very close look at the advice that Jethro gave to his son-in-law Moshe about setting up the judicial system. A usual he basis his analysis on the Talmud.
“If you do this thing, and G-d will command you, and you will be able to endure. This entire people as well will arrive at its destination in peace.” (18:23)
Yisro concludes his proposal to his son-in-law in order to lighten the load upon him. After detailing a system of lesser courts and officials that Yisro would like to see instituted, he speaks to Moshe about the benefits that he can expect to see from these innovations.
Our pasuk, according to Rashi, combines several “if…then” phrases. Rashi takes the second phrase, for example, to be one of the conditions. If Hashem concurs with all that I advise you, and issues the command Himself, then and only then will our plan succeed.
We could suggest an alternative. We can see the entire pasuk as listing the advantages of Yisro’s suggested administrative and legal system. Yisro calls attention to three consequences for Moshe:
The first is that “G-d will command you.” By freeing up more time, Moshe would be in a position to receive more direct commands from Hashem about Torah she-b’al peh. Moshe was adept in the mechanics of the Oral Law. He was able to use its tools to arrive at important halachic conclusions. Often, he would retire to the Ohel Moed to review his learning. There, at the location of the in-dwelling of the Shechinah, he would benefit from the Divine Influence, receiving many fixed halachic conclusions through it. Thus, a benefit of having more time available for his learning would be receiving more Torah directly from Hashem.
Additionally, Moshe would “be able to endure” by instituting Yisro’s plan. The weight of communal responsibility would be eased from his shoulders alone.
Finally – and perhaps most obviously – the people will “arrive at its destination in peace.” Each person will find his tent in peace, not being compelled to wait endlessly on line, seeking answers to his questions.
So far, the plain meaning of the text. We can explore it, however, on a different level. The gemara (Sanhedrin 6b) considers an opinion that judges should not seek pesharah/compromise in place of accurate psak. It points to Moshe, who operated on the principle of “Let din pierce the mountain!” In other words, even when dealing with a litigant as formidable and intransigent as a mountain , the judges should not take the path of least resistance and look for a compromise to avoid miffing the strong party. They should allow the proper din and halacha to emerge, whatever the consequences. The gemara goes on to contrast Moshe with his brother Aharon, the quintessential man of peace, who did favor compromise.
The passage is troubling for a number of reasons. What is the source of the gemara’s finding? From where did Chazal deduce that Moshe’s midah was fastidiousness in din? Must we assume that the gemara – which praises strict law over compromise – runs afoul of established halacha, since we maintain halachically that the court is supposed to urge the litigants to accept compromise rather than insist on pure din.?
“This entire people as well will arrive at its destination in peace.” Yisro predicts that taking up his suggestion will usher in a period of peace upon the people. He speaks about judges who are not fully expert in the law. Such people need take counsel with others before arriving at a conclusion. Yisro tells Moshe that by delegating some of his authority, many of the new judges will favor compromise as a policy. Compromise is good, in that it brings peace to the litigants and to a community.
This could not be Moshe’s way. Moshe’s din-piercing-the-mountain meant that he quickly determined the law in his mind when he heard the opposing claims. While it may be true that we hold a preference for compromise, the halacha is also that judges may only suggest compromise in place of pure din before a determination of pure din has been made (Choshen Mishpat 12:2).
Undoubtedly, this also means that pesharah is an option only prior to the point when they arrive at a conclusion even in their minds about what the pure law has to say [The Netziv disagrees with the Shach there].
Because Moshe instantly grasped what the pure law was, he could never suggest compromise. Such a way of bringing peace to the people was closed off to him.
Indeed, it was closed off to the community as a whole as well – until the judges that Yisro urged upon Moshe were installed and operating. Then a new way of creating peace through compromise came into being.