יתרו

Judicial Reform 

Yitro arrives at the camp and observes Moshe judging the people from dawn to dusk. Troubled by what he sees, Yitro recommends the establishment of the judiciary to ease the pressure on Moshe. Though the new administrative system seems to be the key innovation, a close reading suggests that Yitro's proposals run much deeper.[1]

When asked by Yitro what is going on, Moshe responds as follows:

וַיֹּאמֶר מֹשֶׁה לְחֹתְנוֹ כִּי־יָבֹא אֵלַי הָעָם לִדְרֹשׁ אֱלוקים׃ כִּי־יִהְיֶה לָהֶם דָּבָר בָּא אֵלַי וְשָׁפַטְתִּי בֵּין אִישׁ וּבֵין רֵעֵהוּ וְהוֹדַעְתִּי אֶת־חֻקֵּי הָאֱלוקים וְאֶת־תּוֹרֹתָיו׃[2] (שמות יח:טו)

It is because the people come to me to inquire of God. When they have a dispute, it comes before me, and I decide between one person and another, and I make known the laws and teachings of God.

Yitro is quick to point out the unsustainability of the current system and proposes a new approach:

עַתָּה שְׁמַע בְּקֹלִי אִיעָצְךָ וִיהִי אֱלוקים עִמָּךְ הֱיֵה אַתָּה לָעָם מוּל הָאֱלֹהִים וְהֵבֵאתָ אַתָּה אֶת־הַדְּבָרִים אֶל־הָאֱלוקים׃ וְהִזְהַרְתָּה אֶתְהֶם אֶת־הַחֻקִּים וְאֶת־הַתּוֹרֹת וְהוֹדַעְתָּ לָהֶם אֶת־הַדֶּרֶךְ יֵלְכוּ בָהּ וְאֶת־הַמַּעֲשֶׂה אֲשֶׁר יַעֲשׂוּן׃ (שמות יח:יט-כ)

Now listen to me. I will give you counsel, and God be with you! You represent the people before God: you bring the disputes before God, and enjoin upon them the laws and the teachings, and make known to them the way they are to go and the practices they are to follow.

Before continuing, it is important to stress that these words are said by Yitro prior to any mention of the judiciary. Most commentators assume that 'bringing the disputes (דברים) to God' means Moshe should escalate the cases to God which have been referred to him from the lower courts (v.22). But this is difficult as Yitro has not yet proposed the establishment of the judiciary, so the distinction would have been unintelligible to Moshe. Moreover, this aspect of the plan is not the innovative element. It is essentially the same as the existing situation in which the people bring their disputes to Moshe so that he can 'inquire of God'. What is the difference between ‘inquiring of God’ and ‘bringing the disputes before God’? In other words, how does Yitro's opening suggestion differ in substance from what Moshe was already doing?

Seeking God vs speaking to God

As quoted above, Moshe tells Yitro that people approach him to seek out (לדרש) or inquire of God. What does this expression mean in general and what is the implication in our passage?

Within Tanakh more broadly, the act of inquiring (דרש) of God through a specific medium or person generally refers to seeking supernatural knowledge of a future or hidden matter.[3] When Rivka seeks to hear the destiny of the twins wrestling inside her 'she goes to inquire of the Lord' (Gen. 25.22).[4] As part of the prohibition against various forms of divination, the Israelites are warned not to 'inquire of the dead' (Deut. 18:11). Shaul goes to ‘inquire’ of Shmuel – the 'seer' - in search of his missing donkeys (Sam. I 9:9). Similarly, at the end of his career, in a scene reminiscent of the earlier one, Shaul seeks a witch to 'inquire' of the ghost of Samuel to reveal to him what lies in store in the upcoming battle (Sam. I 28:7). When Achazia wants to know if he will recover from his injury, he instructs his messenger to 'go inquire of the Bal-Zevuv, the god of Ekron' (Kings II 1:2). Similarly, when the king of Aram wishes to know if he will survive his illness, he sends his servant Chazael to Elisha 'to inquire of the Lord' (Kings II 8:8).[5]

The common denominator is that they are all forms of inquiry where the intention is to discern someone or something’s fate. This contrasts to the role of the prophet which is described in Devarim with the emphatic use of the verb or noun form of דבר, and not דרש:

נָבִיא אָקִים לָהֶם מִקֶּרֶב אֲחֵיהֶם כָּמוֹךָ וְנָתַתִּי דְבָרַי בְּפִיו וְדִבֶּר אֲלֵיהֶם אֵת כׇּל־אֲשֶׁר אֲצַוֶּנּוּ׃ וְהָיָה הָאִישׁ אֲשֶׁר לֹא־יִשְׁמַע אֶל־דְּבָרַי אֲשֶׁר יְדַבֵּר בִּשְׁמִי אָנֹכִי אֶדְרֹשׁ מֵעִמּוֹ׃ (דברים יח:יט)

The root ד-ב-ר appears no fewer than 10 times in reference to God's speech in this passage dealing with the prophet, and which follows the prohibition against soothsayers and other diviners (where דרש appears repeatedly). In contrast to oracular inquiry, speech presupposes a dialogue whereby the audience is meant to actively engage and respond to the prophecy. The main function of the prophet is to warn the people to change their behaviour and not simply to predict the future.[6] In other words, the inquirer seeks God to determine their fate, whereas in prophecy God seeks out man. Hence the people are instructed to 'heed the word' of the prophet as a prophecy invariably carries obligation and responsibility. Within the dialogue of prophecy, God calls people to respond and be active in determining the outcome. In what seems to be a play on words, the only reference in the passage of the prophet to the verb דרש is where God 'seeks out' those who disobey the message of the prophecy (אדרש מעמו). In shunning the occult in favour of prophecy, the Torah endorses human responsibility over a world consigned to fate and lacking in accountability.[7]

Returning to Yitro, the people originally approach Moshe to 'seek out God' to resolve their disputes. As shown above, this is a term used for oracular inquiry which generally has a negative connotation. The critique is reinforced when we take into account that oracles were commonly used for judicial adjudication in ancient Egypt, the main cultural contact point of the Torah. Whatever the exact meaning in our context, the association suggests excessive dependence on Moshe and his unique divine channel.

The installment of the judges, as proposed by Yitro, aims to fundamentally alter the dynamic. Unlike Moshe, who had unfettered access to the word of  God, the judges were to render decisions based on their intellect without direct recourse to God. Human autonomy thereby becomes a fundamental component of the new system. 

As already mentioned, however, this is not the end of the matter. To appreciate the full extent of Yitro's reforms, we must closely compare Moshe's description of the current system to Yitro's proposal. Whereas Moshe says the people approach him to inquire of God, Yitro suggests otherwise:

הֱיֵה אַתָּה לָעָם מוּל הָאֱלוקים וְהֵבֵאתָ אַתָּה אֶת־הַדְּבָרִים אֶל־הָאֱלוקים

The key shift is that Yitro transfers Moshe from the side of God to the side of the people. He instructs Moshe to represent the people and bring their words to God. The JPS translation of the word דברים as 'disputes' does not capture the significance of the shift from דרש to דבר. As shown above, the use of דבר in contrast to דרש is an important differentiation which highlights the people's role in actively engaging in dialogue with God and not just receiving direction from God. The sense is that under Yitro’s system, Moshe is to deliver messages ('words') in both directions - not just from God to the people, but also from the people to God.

This is exactly what happens in the very next passage in the prelude to the covenant where it seems the Torah goes out of its way to capture the active (and collective) participation of the people in the process.[8] During the intense build up to the event, Moshe acts as a mediator going up and down the mountain to deliver messages between God and the people:

וַיַּעֲנוּ כׇל־הָעָם יַחְדָּו וַיֹּאמְרוּ כֹּל אֲשֶׁר־דִּבֶּר ה' נַעֲשֶׂה וַיָּשֶׁב מֹשֶׁה אֶת־דִּבְרֵי הָעָם אֶל־ה'׃ וַיֹּאמֶר ה' אֶל־מֹשֶׁה הִנֵּה אָנֹכִי בָּא אֵלֶיךָ בְּעַב הֶעָנָן בַּעֲבוּר יִשְׁמַע הָעָם בְּדַבְּרִי עִמָּךְ וְגַם־בְּךָ יַאֲמִינוּ לְעוֹלָם וַיַּגֵּד מֹשֶׁה אֶת־דִּבְרֵי הָעָם אֶל־ה'׃

Basing himself on the Midrash, Rashi goes as far as saying that the people demanded to drop the mediator role altogether so that they could hear God directly:

את דברי העם וגו'. תְּשׁוּבָה עַל דָּבָר זֶה; שָׁמַעְתִּי מֵהֶם שֶׁרְצוֹנָם לִשְׁמֹעַ מִמְּךָ, אֵינוֹ דּוֹמֶה הַשּׁוֹמֵעַ מִפִּי שָׁלִיחַ לַשּׁוֹמֵעַ מִפִּי הַמֶּלֶךְ, רְצוֹנֵנוּ לִרְאוֹת אֶת מַלְכֵּנוּ

Rashi is trying to bridge a gap in the text which records that Moshe reported the people words to God but doesn’t specify their content. Even if we explain the ‘missing’ words differently, the intensity of the exchange felt in the up-down motion is apparent. The back and forth exchange of words between God and the people is a critical entry point to the covenant whose essence is the mutuality of the relationship between God and Israel. The covenant carried with it ongoing obligations and responsibilities for the people. Until now, this had not been the case.

Perhaps it is not coincidental that the root דבר appears exactly 10 times in the passage of Yitro’s judicial reforms and again 10 times in the preamble to the presenting of the 10 commandments (עשרת הדברים).

The people as legislators

Not only should the people heed God's word, but they are also called to become actively involved in constituting the law (what one might suggest is the essence of the Oral Law). The standout example in the Torah of the implementation of Yitro's system is the case of the daughters of Tzelofchad when they appeal to Moshe that they should be able to inherit the land as their father died without any (male) heirs. The classic commentators all sensed a particular connection between this story and Yitro's proposals.[9]

Moshe listens to the daughters and submits the petition to God exactly as envisaged by Yitro. The language used to describe the approach of the daughters to Moshe correlates to the description of the cases to be brought to Moshe (compare in particular Deut 1:17 and Num. 27:1-5). When God accepts the appeal of the daughters, He declares 'the daughters have spoken correctly' (כן דוברות בנות צלפחד) which realises Yitro's vision that the דברים of the people should be brought to God and God listens to the people.[10]

The timing of this story of the Tzelofchad daughters is highly significant in marking the culmination of the forty years journey and demonstrates the new generation's readiness to enter the land. In order to highlight this purpose, the story is juxtaposed (and even alludes) to the spies episode, thus positioning the courage of the daughters of the new generation in contradistinction to the fear of the spies of the first generation:

הָאֲנָשִׁים אוֹמְרִים נִתְּנָה רֹאשׁ וְנָשׁוּבָה מִצְרַיְמָה, וְהַנָּשִׁים אוֹמְרוֹת "תְּנָה לָּנוּ אֲחֻזָּה", לְכָךְ נִסְמְכָה פָרָשַׁת בְּנוֹת צְלָפְחָד לְכָאן  (רש"י, במדבר כו:סד)

‘Education, Education, Education’

The other subtle change which Yitro introduces in his response, relates to education. Moshe tells Yitro that he judges the people and 'makes known the laws and teachings of God'. Notably, the teaching of the law comes after the activity of adjudication:

כִּי־יִהְיֶה לָהֶם דָּבָר בָּא אֵלַי וְשָׁפַטְתִּי בֵּין אִישׁ וּבֵין רֵעֵהוּ וְהוֹדַעְתִּי אֶת־חֻקֵּי הָאֱלֹוקים וְאֶת־תּוֹרֹתָיו

This creates the impression that the teachings are reactive to the dispute or case over which he presides. A problem or dispute arises and Moshe provides the legal outcome. Yitro on the other hand switches it around. He places the educational role of Moshe before the discussion of the judiciary. In other words, his role as teacher and educator is primary, and stands independently to his role as judge. The scope of the educational element is also far broader:  

וְהִזְהַרְתָּה אֶתְהֶם אֶת־הַחֻקִּים וְאֶת־הַתּוֹרֹת וְהוֹדַעְתָּ לָהֶם אֶת־הַדֶּרֶךְ יֵלְכוּ בָהּ וְאֶת־הַמַּעֲשֶׂה אֲשֶׁר יַעֲשׂוּן

In Yitro's proposal, proactive education replaces reactive judgement. Yitro envisages a system where the people are 'enlightened' with first-hand knowledge of the law.[11] By equipping them with knowledge of the law they will be personally invested in its upkeep, and will know how to solve their own problems. If they are taught the 'way in which to go’ then potential disputes can be avoided from the outset. Hence, even before discussing the judges, Yitro makes the point that the key to relieving the burden on the system (which is but symptomatic of a more fundamental problem) lies with the people themselves. Through comprehensive education people will be empowered to solve their own problems.

Yitro's proposals are in fact core to the revolutionary goal of the Torah that the entire nation should become 'wise and discerning' and a 'kingdom of priests'. Wisdom and knowledge is not to remain the purview of the scribal and priestly elite as was the accepted norm. Indeed, what better way to inspire collective participation in the law then to show that the very origins of the legal and educational institutions were initiated by an outsider and decidedly not by Moshe.[12]

 

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[1] The significance of this diffusion of authority in the context of the reforms was discussed in a prior post, in particular with respect to the textual parallels with the battle of Amalek. This post can be seen as building on similar ideas.

[2] The commentators debate whether these constitute three discrete tasks (see Ramban and Ibn Ezra) or are interconnected i.e. the seeking of God is itself the method of adjudication. I assume the latter in this article, although the difference is not so material for our purposes. 

[3] See for example Rashi Gen. 25:22: להגיד לה מה תהא בסופה. In contrast, Ramban (Ex. 18:15 and Gen 25:22) interprets דרש as referring to prayer. Ramban’s later comments (Deut. 13:5 and 18:13) appear to contradict. Yosef Marcus uses this as an example to show that at times the Ramban revised his view later yet the earlier commentary was not updated (see here). See also commentary of the Netziv who rejects the prayer interpretation of the Ramban.

The examples here should not be confused with 'seeking God' where God is himself the object of the seeking in the sense of cleaving to God (e.g. Deut. 12:5, Isa. 55:6)    

[4] With regards to Rivka going to 'seek the Lord', R. Sacks writes as follows:

Oracles do not belong in the Israelite religion. They belong to the world of myth, the world the Hebrew Bible rejects. This is not a small point but a fundamental one. Oracles and prophecies belong to two different types of civilisation. Oracles belong to the cluster of ideas – fate, hubris, nemesis – that yield tragedy in the classic, Greek sense. In tragedy the outcome is signalled in advance, and the more the characters fight against their fate, the more enmeshed in it they become. Prophecy, by contrast, belongs to open, non-predetermined, historical time, the time that makes its first appearance in the Hebrew Bible, and constitutes one of its most original contributions to human thought. The prophet warns; he does not predict. Tomorrow is made by our choices today. Time, for the prophets, is not the inexorable unfolding of destiny but the arena of human freedom in response to the call of God (Not in God’s Name, p.140)

[5] It is noteworthy that the root דרש is never used in reference to the Urim VeTumim. Instead, we find the word שאל is used which suggests a more developed question. This accords with the nature of the questions directed to the Urim VeTumim which are more related to strategy rather than knowing the future (see Judges 1:1; 20:18; 20:22; Sam. I 23:2; 30:8; Sam. II 2:1; 5:23). I have see some people suggest that the Urim VeTumim could only give yes or no answers.

[6] Ascertaining the future was not seen as equally problematic by all the classical commentators, however Rashi (comments to Deut. 18:13) forcefully objects:

 תמים תהיה עם ה' אלהיך - התהלך עמו בתמימות ותצפה לו ולא תחקור אחר העתידות, אלא כל מה שיבא עליך קבל בתמימות ואז תהיה עמו ולחלקו

[7] It should be noted that even the institution of prophecy is mentioned as a concession to the people requesting an intermediary (i.e Moshe) to avoid direct exposure to the word of God (see Deut. 18:16).

[8] The collective aspect is highlighted by the fact that Moshe communicates God's offer to the elders (Ex, 19:7) yet the next verse notes that 'all' the people responded affirmatively.

[9] See Bechor Shor and Seforno (Ex.18:19) and Rashi (Num. 27:5). There are four other cases where Moshe turns to God for clarification of the law, but this case most closely parallels the Yitro language and framework.

[10] We have previously discussed  how individual initiative is a key theme uniting the otherwise disjointed passages at the end of sefer Bamidbar (see here)

[11] Mitchell First has pointed out that this is one of the only examples where the verb זהר is used in a positive sense rather than as a negative warning. He suggests 'enlightened' may be a more appropriate translation based on other contexts (Ezekiel 8:2 and Daniel 12:3).

[12] Moshe’s review in Devarim omits the role of Yitro, however that is a matter for separate discussion.