דברים

Between the Judges and the Spies

Moshe opens his first speech by rewinding to the time when the nation was still encamped at Mt Sinai. God instructs Moshe to commence the 11-day journey towards Israel and gives him a short pep talk about the conquest of the land. Moshe then recalls how he appointed judges to share the burden of leadership and to deal with the people's many disputes. Following this, Moshe recounts the episode of the spies and the tragic consequences which followed.

It is of course understandable why Moshe focused on the spy episode as this was an apt time to remind the people why they had spent forty years wondering the wilderness and were only now entering the land. By recounting what went wrong the first time and the repercussions, they would be focused on not repeating those errors on the second attempt. Indeed, the need for resilient faith to defeat the nations of the land in the upcoming conquest would be a core theme in the rest of Moshe's speech. 

Far more difficult to understand, is the purpose of recounting the episode of the judges. Given that Moshe presents his request as a response to God's command to advance towards the land, it seems clear that Moshe somehow saw the appointment of the judges as a prerequisite to the fulfilment of that specific instruction. It should be noted that almost the entire 40-year sojourn is omitted from Moshe's speech, so clearly it was not a problem to skip events which were not integral to the upcoming mission. We must therefore assume that the timing of Moshe's request to appoint judges was not coincidental but deeply connected with the conquest of the land.

As is well known, there are numerous discrepancies between the earlier narratives of the judges and the spies, and Moshe's recollection of these two episodes forty years later. Much has been written on attempting to resolve these discrepancies and that will not be our focus. For our purposes, of interest is the interaction between these two episodes in the context of Moshe's speech. If we understand how these two episodes interact it might shed light on why these two episodes together feature as the opening to Moshe's speech.

Comparison of the two episodes

The first point to note is the similar but inverse nature of the introductions to the respective episodes. In the episode of the judges, Moshe makes a proposal to the people whilst in the episode of the spies the people make a proposal to Moshe. In both cases this is somewhat surprising as according to the earlier versions no dialogue between Moshe and the people was reported.

The respective problem and solution in both cases are also similar.

אֵיכָה אֶשָּׂא לְבַדִּי טׇרְחֲכֶם וּמַשַּׂאֲכֶם וְרִיבְכֶם׃ הָבוּ לָכֶם אֲנָשִׁים חֲכָמִים וּנְבֹנִים וִידֻעִים לְשִׁבְטֵיכֶם וַאֲשִׂימֵם בְּרָאשֵׁיכֶם׃ וַתַּעֲנוּ אֹתִי וַתֹּאמְרוּ טוֹב־הַדָּבָר אֲשֶׁר־דִּבַּרְתָּ לַעֲשׂוֹת׃ (דברים א:יד)

וַתִּקְרְבוּן אֵלַי כֻּלְּכֶם וַתֹּאמְרוּ נִשְׁלְחָה אֲנָשִׁים לְפָנֵינוּ וְיַחְפְּרוּ־לָנוּ אֶת־הָאָרֶץ וְיָשִׁבוּ אֹתָנוּ דָּבָר אֶת־הַדֶּרֶךְ אֲשֶׁר נַעֲלֶה־בָּהּ וְאֵת הֶעָרִים אֲשֶׁר נָבֹא אֲלֵיהֶן׃ וַיִּיטַב בְּעֵינַי הַדָּבָר וָאֶקַּח מִכֶּם שְׁנֵים עָשָׂר אֲנָשִׁים אִישׁ אֶחָד לַשָּׁבֶט׃ (דברים א:כג)

In the episode of the judges Moshe complains he unable to perform a task on his own and therefore requests assistance from other people. In the episode of the spies, the difficulty facing the nation is the fear of being outnumbered by the enemy forces. They too request the appointment of a select group to mitigate the challenge ahead. These people are also referred to as heads of the tribes:

וָאֶקַּח אֶת־רָאשֵׁי שִׁבְטֵיכֶם... (דברים א:טו)

וָאֶקַּח מִכֶּם שְׁנֵים עָשָׂר אֲנָשִׁים אִישׁ אֶחָד לַשָּׁבֶט (דברים א:כג)

Once again there is an inversion of sorts – whereas in the episode of the spies the people are fearful of the great number of the enemy, in the episode of the judges Moshe is overwhelmed by the large number of the Israelites:

ה' אֱלֹקיכֶם הִרְבָּה אֶתְכֶם וְהִנְּכֶם הַיּוֹם כְּכוֹכְבֵי הַשָּׁמַיִם לָרֹב (דברים א:י)

We must therefore ask - what is the function of the interplay between these two episodes at the start of Moshe's speech?

One might suggest that the purpose is to contrast the request of Moshe and the people. Moshe's plea for assistance came from a position of humility, whilst the people's request came from a place of fear. However, this seems relatively trivial and removed from the immediate context which is the conquest of the land. As noted above, Moshe's request came specifically in response to the instruction to advance towards the land which is the core issue in the episode of the spies. 

The battlefield as a macrocosm of the courtroom

It seems that the answer may be found in the job description of the judges. Unlike in the original narrative, when Moshe recounts the event, we are privy to a direct communication between Moshe and the judges. The three-verse instruction to the judges comprises three basic principles: 1) judge righteously; 2) do not be intimidated / judge everyone equally ('big' and 'small'); and 3) bring the difficult matters to Moshe:

וָאֲצַוֶּה אֶת־שֹׁפְטֵיכֶם בָּעֵת הַהִוא לֵאמֹר שָׁמֹעַ בֵּין־אֲחֵיכֶם וּשְׁפַטְתֶּם צֶדֶק בֵּין־אִישׁ וּבֵין־אָחִיו וּבֵין גֵּרוֹ׃ לֹא־תַכִּירוּ פָנִים בַּמִּשְׁפָּט כַּקָּטֹן כַּגָּדֹל תִּשְׁמָעוּן לֹא תָגוּרוּ מִפְּנֵי־אִישׁ כִּי הַמִּשְׁפָּט לֵאלֹקים הוּא וְהַדָּבָר אֲשֶׁר יִקְשֶׁה מִכֶּם תַּקְרִבוּן אֵלַי וּשְׁמַעְתִּיו׃ (דברים א:יז)

Interestingly, it was these very qualities which Moshe sought in the judges which were glaringly absent when it came to the spies. When the spies reported back to the people, size made all the difference:

אָנָה  אֲנַחְנוּ עֹלִים אַחֵינוּ הֵמַסּוּ אֶת־לְבָבֵנוּ לֵאמֹר עַם גָּדוֹל וָרָם מִמֶּנּוּ עָרִים גְּדֹלֹת וּבְצוּרֹת בַּשָּׁמָיִם וְגַם־בְּנֵי עֲנָקִים רָאִינוּ שָׁם׃ וָאֹמַר אֲלֵכֶם לֹא־תַעַרְצוּן וְלֹא־תִירְאוּן מֵהֶם׃ (דברים א:כח)

Since the function of the judge is to apply God's law, if the judges are intimidated then the supremacy of God's law is diminished. As a representative of God's law, the judge must remain fearless.

If the judge is God's representative in the courtroom then on the battlefield that position is taken up by the Jewish soldier. As much as 'might is right' has no place in the two sides clash in a courtroom, so too on the battleground. The enemy may be larger and stronger, but the nation must not be intimidated. They must be committed to the justness of their cause like the judge must be dedicated to the course of justice. In both cases, fear of man cannot be an obstacle.

The interplay between the two episodes goes beyond ideological conviction. The idea is not simply that the soldier should model himself on the judge in fearlessly approaching the enemy. Rather, the soldier should realise that overseeing the military clash between the two sides, is the Supreme Judge who will determine the outcome of the battle. His concern is with the 'just' outcome and not which side is stronger. In a sense, the battleground should be conceived of as a macrocosm of the courtroom where the 'right' side emerges victorious.

A matter too difficult

When the people approach Moshe at the beginning of the story of the spies, their words closely mirror the case of a judge who is unable to deal with the matter before him and must escalate to Moshe:

...לֹא תָגוּרוּ מִפְּנֵי־אִישׁ כִּי הַמִּשְׁפָּט לֵאלֹקים הוּא וְהַדָּבָר אֲשֶׁר יִקְשֶׁה מִכֶּם תַּקְרִבוּן אֵלַי וּשְׁמַעְתִּיו׃ (דברים א:יז)

רְאֵה נָתַן ה' אֱלֹהֶיךָ לְפָנֶיךָ אֶת־הָאָרֶץ עֲלֵה רֵשׁ כַּאֲשֶׁר דִּבֶּר ה' אֱלֹקי אֲבֹתֶיךָ לָךְ אַל־תִּירָא וְאַל־תֵּחָת: וַתִּקְרְבוּן אֵלַי כֻּלְּכֶם וַתֹּאמְרוּ... (דברים א:כא-כב)

To be sure, a matter too difficult for the judges presumably means a matter too technically complex. However, it may also be read as a direct continuation of the previous clause demanding that the judges not be intimidated by any party. Regarding such a matter, if the judges are overawed by one of the parties, Moshe instructs them to escalate the matter to him. (I do not think this is the primary meaning, but the literary flow of the passage invokes such an impression which supports a double reading.)

Sending spies ahead of the rest of the army might be necessary to obtain a strategic advantage, however it may also suggest fear and hesitation. By adopting the language from the judges' passage Moshe alludes to the latter; they came to him as the matter was indeed 'too difficult for them'.[1]

Recall that the world of slavery which the first generation were born into was one where brute force prevails over justice and equality. This was polar opposite to the model of the judges where righteousness triumphs against power. Given the hierarchy they were used to, perhaps it is not so surprising that they were struck with fear in the face of the larger and stronger enemy. This was indeed God's concern from the outset:

וְלֹא־נָחָם אֱלֹהִים דֶּרֶךְ אֶרֶץ פְּלִשְׁתִּים כִּי קָרוֹב הוּא כִּי אָמַר אֱלֹקים פֶּן־יִנָּחֵם הָעָם בִּרְאֹתָם מִלְחָמָה וְשָׁבוּ מִצְרָיְמָה (שמות יג:יז)

It would therefore fall to the second generation - the audience of Moshe's speech - to fully internalise the new value system and framework (exemplified by the judges) and apply it in the upcoming conquest.

The right 'derech'

There is a final angle worth noting. In explaining their request to Moshe, the people state that the function of the spies will be to determine the best way into the land:

וְיָשִׁבוּ אֹתָנוּ דָּבָר אֶת־הַדֶּרֶךְ אֲשֶׁר נַעֲלֶה־בָּהּ... (דברים א:כב)

Further on, as part of the rebuke, God emphasizes that He has guided them 'showing them the way' throughout their sojourn in the wilderness:

הַהֹלֵךְ לִפְנֵיכֶם בַּדֶּרֶךְ לָתוּר לָכֶם מָקוֹם לַחֲנֹתְכֶם בָּאֵשׁ  לַיְלָה לַרְאֹתְכֶם בַּדֶּרֶךְ אֲשֶׁר תֵּלְכוּ־בָהּ וּבֶעָנָן יוֹמָם׃ (דברים א:לג)[2]

The implication is that the people's request was flawed as they failed to appreciate the role of God as the ultimate guide.[3] This is not to say that sending spies was inherently problematic, but the drive behind it – the panic and fear which exposed a lack of faith in God – meant that the mission was doomed to fail.

Looking back to the original version of the appointment of the judges, Yitro uses an identical expression when explaining to Moshe the importance of educating the nation:

וְהִזְהַרְתָּה אֶתְהֶם אֶת־הַחֻקִּים וְאֶת־הַתּוֹרֹת וְהוֹדַעְתָּ לָהֶם אֶת־הַדֶּרֶךְ יֵלְכוּ בָהּ וְאֶת־הַמַּעֲשֶׂה אֲשֶׁר יַעֲשׂוּן׃ (שמות יח:כ)

Whilst in Devarim there is a strong focus on the how the judge must act against the drama of the courtroom, in Yitro the focus is more on the need for education to prevent the dispute from arising in the first place.[4] The Yitro focus on education is particularly appropriate as a prelude to the giving of the Torah (noting that in Yitro the judges are appointed before the giving of the Torah whereas in Devarim they are appointed after).

The role of the judges as educators of God's law ('way') – though not the focus in Devarim - may also be relevant to the conquest of the land. By teaching God's law, they heighten awareness of God's interest and involvement in human affairs.[5] If God may instruct people how to behave then if follows that He also governs the world in accordance with those principles. Put differently, by using the same expression for both (את הדרך ילכו בה), an equivalence is drawn between the knowledge of God's law and knowledge of His providence. Thus, engagement with God's law also becomes a pathway to recognising God's active role in determining the outcome of the battle.[6]

 

 

 

 

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[1] Rashi's commentary is instructive here:

ותקרבון אלי כלכם. בְּעִרְבּוּבְיָא; וּלְהַלָּן הוּא אוֹמֵר "וַתִּקְרְבוּן אֵלַי כָּל רָאשֵׁי שִׁבְטֵיכֶם וְזִקְנֵיכֶם וַתֹּאמְרוּ הֵן הֶרְאָנוּ וְגוֹ'", אוֹתָהּ קְרִיבָה הָיְתָה הוֹגֶנֶת – יְלָדִים מְכַבְּדִים אֶת הַזְּקֵנִים וּשְׁלָחוּם לִפְנֵיהֶם, וּזְקֵנִים מְכַבְּדִים אֶת הָרָאשִׁים לָלֶכֶת לִפְנֵיהֶם, אֲבָל כָּאן "וַתִּקְרְבוּן אֵלַי כֻּלְּכֶם" בְּעִרְבּוּבְיָא – יְלָדִים דּוֹחֲפִין אֶת הַזְּקֵנִים, וּזְקֵנִים דּוֹחֲפִין אֶת הָרָאשִׁים (ספרי)

[2] The principle is alluded to again in the book of Yehoshua just prior to the crossing of the Jordan river:

וַיְצַוּוּ אֶת־הָעָם לֵאמֹר כִּרְאוֹתְכֶם אֵת אֲרוֹן בְּרִית־ה' אֱלֹקיכֶם וְהַכֹּהֲנִים הַלְוִיִּם נֹשְׂאִים אֹתוֹ וְאַתֶּם תִּסְעוּ מִמְּקוֹמְכֶם וַהֲלַכְתֶּם אַחֲרָיו׃ אַךְ רָחוֹק יִהְיֶה בֵּינֵיכֶם ובינו [וּבֵינָיו] כְּאַלְפַּיִם אַמָּה בַּמִּדָּה אַל־תִּקְרְבוּ אֵלָיו לְמַעַן אֲשֶׁר־תֵּדְעוּ אֶת־הַדֶּרֶךְ אֲשֶׁר תֵּלְכוּ־בָהּ כִּי לֹא עֲבַרְתֶּם בַּדֶּרֶךְ מִתְּמוֹל שִׁלְשׁוֹם׃ (יהושע ג:ג-ד)

[3] This is not the only place where there is an apparent conflict between the prospect of a human guide and God leading the people. See post here

[4] I appreciate this requires more analysis and, God willing, I hope to elaborate on another occasion.

[5] To be more precise, the educational role which Yitro mentions is directed first and foremost at Moshe. However, presumably it was also part of the mandate of the judges.

[6] The point is supported by the fact that the judges episode in parashat Yitro is also juxtaposed to a military story – the battle against Amalek. A close reading of these stories shows a large number of parallels between the support provided to Moshe by Aharon and Chur on the mountain and the judicial system proposed by Yitro. For further discussion see post here.