דברים

The Courtroom as a Microcosm of the Battlefield

Moshe opens his first speech in Sefer Devarim by harking back to the time when the nation was still encamped at Mt Sinai. He recalls how God instructed him to commence the 11-day journey to Israel and references God's words of encouragement for the upcoming conquest. Moshe then recalls how 'at that time' (ba-et ha-hee) he appointed judges to share the burden of leadership and to deal with the people's many disputes. Thereafter, he recounts the episode of the spies and its tragic consequences.

It is eminently understandable why Moshe focused on the episode of the spies as this was an apt time to remind the people of the previous failure. By recounting the repercussions, they would be focused on not repeating those errors now. Indeed, the need for resilience and faith in the upcoming conquest would be a core theme in the rest of Moshe's speech. 

Far more challenging, however, is the reason for recounting the recruitment of judges at this point. First, the review of the judges episode interrupts the natural link between the instruction to advance towards the land and the review of the spies episode, Second, despite the use of the ba-et ha-hee phrase (which appears 15 times throughout Sefer Devarim), it is far from clear that this episode took place at this precise historical juncture as according to the sequencing of Sefer Shemot the judges were selected before Matan Torah. Third, Moshe's purpose in this speech is evidently not to provide a comprehensive review of all events, therefore each episode recalled must serve a special rhetorical purpose. This is all the more significant in the present case as we are discussing the very opening of the speech.        

To address these points we will compare the episodes of the spies and the judges as framed here within the specific context of Moshe's speech.[1]

Comparison of the two passages

There are several noteworthy points of comparison between the two passages. 

Both passages involve the presentation of a dilemma and an initiative to solve it. However, the position of Moshe and the Israelites, as well as other aspects, are inverted.

In both passages, the ‘problem’ relates, in some form, to being overwhelmed and outnumbered. In the judges passage, Moshe cannot cope with the large number of Israelites (Deut. 1:10), whereas in the spies passage the people are fearful of the size of the enemy (Deut. 1:28).

In the judges passage, Moshe presents the initiative to the Israelites, whereas in the case of the spies it is the people who take the initiative to Moshe. The contours of both initiatives are also similar. Both involve a suggestion to select a group of tribal representatives which is followed by a positive response from the other party. These thematic similarities are reflected in textual correspondences as well: 

וָאֹמַר אֲלֵכֶם בָּעֵת הַהִוא לֵאמֹר לֹא־אוּכַל לְבַדִּי שְׂאֵת אֶתְכֶם... הָבוּ לָכֶם אֲנָשִׁים חֲכָמִים וּנְבֹנִים וִידֻעִים לְשִׁבְטֵיכֶם וַאֲשִׂימֵם בְּרָאשֵׁיכֶם׃ וַתַּעֲנוּ אֹתִי וַתֹּאמְרוּ טוֹב־הַדָּבָר אֲשֶׁר־דִּבַּרְתָּ לַעֲשׂוֹת׃ וָאֶקַּח אֶת־רָאשֵׁי שִׁבְטֵיכֶם אֲנָשִׁים חֲכָמִים וִידֻעִים וָאֶתֵּן אוֹתָם רָאשִׁים עֲלֵיכֶם שָׂרֵי אֲלָפִים וְשָׂרֵי מֵאוֹת וְשָׂרֵי חֲמִשִּׁים וְשָׂרֵי עֲשָׂרֹת וְשֹׁטְרִים לְשִׁבְטֵיכֶם׃ לֹא־תַכִּירוּ פָנִים בַּמִּשְׁפָּט כַּקָּטֹן כַּגָּדֹל תִּשְׁמָעוּן לֹא תָגוּרוּ מִפְּנֵי־אִישׁ כִּי הַמִּשְׁפָּט לֵאלֹהִים הוּא וְהַדָּבָר אֲשֶׁר יִקְשֶׁה מִכֶּם תַּקְרִבוּן אֵלַי וּשְׁמַעְתִּיו׃ (דברים א':ט-יז)

וָאֹמַר אֲלֵכֶם בָּאתֶם עַד־הַר הָאֱמֹרִי אֲשֶׁר־יְהֹוָה אֱלֹהֵינוּ נֹתֵן לָנוּ׃ רְאֵה נָתַן יְהֹוָה אֱלֹהֶיךָ לְפָנֶיךָ אֶת־הָאָרֶץ עֲלֵה רֵשׁ כַּאֲשֶׁר דִּבֶּר יְהֹוָה אֱלֹהֵי אֲבֹתֶיךָ לָךְ אַל־תִּירָא וְאַל־תֵּחָת׃ 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׃ וַיִּפְנוּ וַיַּעֲלוּ הָהָרָה וַיָּבֹאוּ עַד־נַחַל אֶשְׁכֹּל וַיְרַגְּלוּ אֹתָהּ׃ (דברים א':כ-כד) 

Most importantly, as will be discussed further below, a directive to 'not fear' is central to both episodes.

In light of the above, it is important to determine the significance of the interplay between these two episodes in the context of Moshe's speech.

Courtroom as microcosm of the battlefield

Unlike in the original narrative, when Moshe recounts the appointment of the judges, we are privy to a direct communication between Moshe and the judges. The instruction to the judges includes a directive that a judge remain objective and impartial, and not be intimidated by any party regardless of power or status:[2] 

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)

These very qualities which Moshe sought in the judges seem to have been glaringly absent when it came to the spies. When the spies reported back to the people, size made all the difference and the people were intimidated as a result:

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)

If the judge is God's representative in the courtroom then on the battlefield that responsibility is assumed by the Israelite soldier. Just as size and relative power does not determine the outcome in the courtroom, so too it should be disregarded on the battleground. The courage of the judge thus serves as a model for the soldiery who will need to face off a formidable enemy.[3]  

The issue is one of bravery and valour, but not just. The courtroom paradigm reminds us that whilst the enemy may appear larger and stronger, overseeing the ultimate outcome is the Supreme Judge. In a sense, the battleground should be conceived of as a macrocosm of the courtroom whereby the righteous side, fighting with faith and conviction, 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)

A matter ‘too difficult’ for the judges is generally understood as a matter too technically complex. In other words, where a verdict cannot be reached by the judges, Moshe acts as the final arbiter of the law. However, if we read the clause as a direct continuation of the injunction to ‘fear no man’, then it obtains a new (or additional) meaning. The case which must be escalated to Moshe is one where, due to the profile of the case or the parties involved, there is a risk that the judge will be overawed.[4] 

This alternative reading becomes highly relevant in the context of the spies. The initiative to send spies may be construed as a strategic move, but it may also expose underlying fear and hesitation. Moshe intimates here (albeit with the benefit of hindsight) that the people were motivated by the latter. Due to their fear and lack of faith, the matter was indeed 'too difficult for them', and as a result they brought the matter to him.[5] At the same time, Moshe identifies the fearless and autonomous persona of the judge as the paradigm for the soldier in the upcoming conquest.

Judge as foil to slave 

To gain a fuller appreciation of the relevance of the judges passage to the opening of Moshe's speech, one must also consider bear in mind the complexity of transition from slaves to sovereign nation. The absolute dependency of the Israelites upon their Egyptian masters, provides an important backdrop to the fear of waging battle and entering the land. Settling the land presupposes an autonomous existence on the individual and national level, which is polar opposite to the life of the slave. This is a well attested motif constantly lurking in the background to the wilderness sojourn. 

In this regard, the persona of the judge could not be more different from that of the slave. By maintaining impartiality, fierce independence, and resisting all external pressures, the judge expresses a personal autonomy which stands in marked distinction to the slave.[6] The former Israelite slaves establishing their own judiciary, therefore becomes a defining symbol of their emancipation.

Just as important as the process of independent adjudication, is its stated objective. When laying out the mandate of the judges, Moshe does not simply require the judge to withstand intimidation, but emphasises the need to hear everyone equally regardless of status: "Hear out your fellow men, and decide justly between any man and a fellow Israelite or a stranger… hear out low and high alike". This ideal - to give an equal voice to all members of society – stands in stark relief to the imbalance of power inherent in the system of slavery.[7]

The autonomy exhibited by the judge, coupled with their mandate to provide equal treatment to all, is critical to shaping the values and identity of the new nation which is a key focus of Sefer Devarim.[8] In sharp contrast to ancient Near Eastern norm, the Torah endorses a system of collective power sourced in the individual and community, rather than a system of exclusionary power whereby the king and the elite dominate. We therefore find that the conventional status of king as elected son of God is supplanted by the collective polity of Israel referred to as ‘sons of God’ (Deut. 14:1); in place of the scribal and priestly elite, Israel as a collective is to become a ‘wise and discerning nation’ (Deut. 4:6) and a ‘kingdom of priests’ (Ex. 19:6). The powers of a king are severely curtailed and a strong ambivalence hangs over the entire institution.[9] It is therefore instructive that the appointment of the judges, tasked with listening to everyone on equal terms, opens the book of Devarim. 

A similar emphasis can also be discerned in the process through which the judges were appointed. In what might be described as an early example of judicial independence, Moshe reports that he directed the people to select the judges (havu lakhem),[10] and the judges themselves are considered representatives of the people.[11] This is a surprising twist given that the pretext for the appointment was the excessive pressure exerted on Moshe personally, creating an expectation for the judges to be cast as representatives of Moshe. It is also important to highlight that the selection was based exclusively on individual qualities (see v.15) and not on pedigree. Thus, even as the judiciary was established, the people were to take an active role in terms of both selection and composition. The move is significant as, beyond its democratic underpinnings, it aligns the Israelites with the objectives of the judiciary and the required qualities. 

In summary, the importance of the judges passage in the opening of Moshe's valedictory speech serves several linked purposes. The fundamental decision to appoint judges represents a diffusion of power and diversity of leadership. The consultation initiated by Moshe coupled with selection of the judges by representatives of the people, democratises the process and fuels collective participation. The function of the judiciary highlighted by our passage - to ensure justice for all and equality before the law – promotes the conception of equal standing before God. Finally, the God-fearing but courageous persona of the judges alludes to the autonomy and independence required on an individual and national level, as the Israelites seek to establish themselves as a free and sovereign nation.

 

 

 

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[1] For various alternative explanations of the placement of the judges passage, see Ramban, Abravanel and R' D.Z. Hoffman. Note that our focus here is on the interaction between these two episodes within Moshe's speech, and not the apparent contradictions with the earlier narratives. 

[2] Some rabbinic authorities deduced based on Sifri and Rambam that a judge is required to endanger his life rather than abscond, see Bach (C.M.12:1). This is particularly interesting for the purposes of the comparison proposed here between the battlefield and the court. 

[3] This proposition takes on additional significance when we account for the fact that the judges in those days were military personnel (the overlap of position is noted by Abravanel and R' Hoffman, as well as modern scholars). 

[4] One viewpoint found in the Talmud is that the change from davar ha-gadol to davar ha-kasheh reflected a deliberate modification on the part of Moshe to Yitro's original plan (TB Sanhedrin 8a; Rashi, Num. 27:5). 

[5] Rashi's commentary is on point:

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)

[6] The following definition of personal autonomy is useful for our purposes: 

“Personal autonomy (also referred to as ‘individual autonomy’) refers to a psychological property, the possession of which enables agents to reflect critically on their natures, preferences and ends, to locate their most authentic commitments, and to live consistently in accordance with these in the face of various forms of internal and external interference. Personally autonomous agents are said to possess heightened capacities for self-control, introspection, independence of judgment, and critical reflection; and to this extent personal autonomy is often put forth as an ideal of character or a virtue, the opposite of which is blind conformity, or not ‘being one’s own person’.” (“Autonomy: Normative,” by M. Piper, The Internet Encyclopedia of Philosophy, ISSN 2161-0002, https://iep.utm.edu/)

[7]  As always, there is a gap between theory and practice as the prophets were constantly calling out the miscarriage of justice. Likewise, Thomas Jefferson could quill the words ‘all men are created equal’ and still be a slave owner. Nevertheless, the articulation of the vision sets the direction of travel.

[8] Regarding the meaning of the phrase havu lakhem, compare Rashi and the Netziv in their respective commentaries. Netziv understands that the people were themselves responsible for the selection (as we have suggested), whereas Rashi provides a more restricted meaning.

[9] See J. Berman, Created Equal: How the Bible Broke With Ancient Political Thought (New York: Oxford University Press, 2011), pp. 59-68; 114-117.

[10] The appointment of a king is tied to a request of the people to replicate the 'surrounding nations' suggesting a sub-optimal scenario. In Sefer Shmuel the request for a king is fiercely criticised. Whether in fact the appointment of a king is an absolute command was the subject of a tannaitic dispute (TB Sanhedrin 20b). The negative position reflects the view of R. Nehorai which is elaborated upon at length by the Abravanel (Deut. 17:3 and 1 Sam. 8:4). 

[11] The judiciary, as described here, may not be defined as independent in the modern sense, as Moshe (the executive branch) was the supreme authority who dealt with the ‘difficult’ cases. However, the system prescribed for the post-Moshe era (Deut. 16:18-17:14), including the establishment of the central judiciary, notably omits any role for the king or the prophet (or oracle for that matter) and may indeed be the earliest known model of judicial independence which entailed separation of powers. See D. C. Flatto “The Historical Origins of Judicial Independence and Their Modern Resonances”, 117 Yale L.J. Pocket Part 8 (2007), http://yalelawjournal.org/forum/the-historical-origins-of-judicial-independence-and-theirmodern-resonances