CHAMISHOH MI YODEI'A - FIVE QUESTIONS ON THE WEEKLY SEDRAH - PARSHAS YISRO 5768 - BS"D
Ch. 18, v. 16: "Ki yi'h'yeh lo'hem dovor ba ei'lai" - When they have a matter it comes to me - What or whom comes to Moshe?
Ch. 18, v. 16: "Ki yi'h'yeh lohem dovor ba eilai" - When there is a matter of dispute between them he comes to me - According to this literal translation of these words we have two disputants, "lohem," and yet, the verse ends in the singular, "ba."
Ch. 18, v. 20: "Asher yaasun" - That they shall do - The gemara B.K. 99b derives from these words that one should go beyond the letter of the law to fulfill Hashem's wishes. If this is derived from the verse then beyond the letter of the law is the law itself.
Ch. 18, v. 21: "V'samto a'lei'hem" - And you shall place upon them - When Moshe acted upon Yisro's advice as recorded in verse 25, we find a change in terminology, "vaYI'TEIN osom." Why the change from "simoh" to "n'sinoh"?
Ch. 19, v. 20: "Al har Sinai" - On Mount Sinai - Why wasn't the Torah given in Eretz Yisroel?
1) The dispute comes to me.
2) The Ramban in the previous verse writes that Moshe told Yisro that people came to him to pray on behalf of their sick. In our verse Moshe explains why his prayers were potent. "Ki yi'h'yeh lo'hem dovor," when they have a concern, a health problem, "ba ei'lai," the matter reaches me, the pain they suffer enters my heart and I suffer along with them. With total empathy I pray to Hashem and therefore my prayers are potent. (Chasan Sofer)
3) The Chemdas Shlomo says "ba ei'lai" refers to Hashem, as per the verse "Elokim nitzov baadas eil" (T'hilim 82:1).
To answer this seeming inconsistency we might say, based on the gemara Sanhedrin, that the judge is required to create a level playing field for disputants so that there is no real or even perceived favouritism. (This goes so far as requiring the disputants to wear somewhat similar qualities of clothing!) Moshe related to Yisro that he judged so fairly that when two disputants came to him he made sure that they felt so equal that it was as if not two people, i.e. people of unequal stature, appeared in front of him, but rather, they felt so equal that it was as if ONE person came to him. (Nirreh li)
This would be yield another answer to the previous question.
The Shalo"h asks this question.
1) Possibly, we can say that going beyond the letter of the law is not a requirement to the point that it is either a sin or a merit. For example, commentators explain the rationale of the prohibition to not slaughter two generations of animals in one day. They say that we should put in effort to not destroy species, even if there are millions of cows in the world, slaughtering a cow and its calf brings closer to extinction of that species. Technically, one could round up thousands of cows and slaughter them one day, and the next day slaughter their thousands of calves. He will not have transgressed any sin. Nevertheless, since in a very short period of time he would be destroying two generations, it is possible that this goes into the ruling of "lifnim mishuras hadin."
Going beyond the letter of the law might be derived from these words because the word "yaasuN" has a final Nun. This additional letter indicates the diminutive, as mentioned in an earlier edition in the name of the Rada"k in his Sefer Shoroshim on the entry "ish." There is the main "asioh," the required letter of the law, and there is a lesser "asioh," that which is not required, but is requested, "lifnim mishuras hadin." (Nirreh li)
2) Another aspect of "lifnim mishuras hadin" is safeguards, "s'yog laTorah." (Rabbeinu Menachem)
The Yeshuos Yaakov explains that "simoh" refers to placing something that will have a DOUBTFUL result, while "n'sinoh" refers to placing or doing something that will have a DEFINITE result, or at least the result is clearly expected. He proves this from "V'samti l'cho mokome asher yonus shomoh" (Shmos 21:13). There is no guarantee that an accidental killer will ever seek refuge there, as no one might accidentally kill. Similarly by the warning to build a safety fence, "maakoh," around an elevated walking area, "V'lo SOSIM domim b'vei'secho" (Dvorim 22:8), "simoh," where again even if it is not built there is no great likelihood that a person will come to harm.
We also understand why our Rabbis interpret the words "V'lifnei i'veir lo SI'TEIN michshole" (Vayikra 19:14) to either mean to not give bad advice to a person who is not knowledgeable in a certain matter and relies upon you, or to not extend a cup of wine to a Nozir. Why explain these words in this manner when it can simply mean to not place a stumbling block in the path of a blind man? It is because the verse says "lo SI'TEIN," and not "lo SOSIM." This indicates that the negative result will most likely take place, which is not the case with a blind man, as he might just walk past the stumbling block without falling over it. If this simple case was the only intention of the verse, the word-form "n'sinoh" would not have been used.
Yisro advised Moshe to place judges over the people, but did not add that Moshe should first see to it that the appointees are to the liking of the masses, hence he expressed himself with "v'SAMTO." Their positions were not guaranteed if Moshe would just impose them upon the people. Moshe only appointed judges after conferring with the public and finding it agreeable (see gemara Brochos 55a) with his choices. We clearly see this from the words in Dvorim 1:13, where Moshe asks for the people to suggest appointees, "Hovu lochem anoshim chachomim …… vaasi'meim b'rosheichem." This is why verse 25 says "vaYI'TEIN," as their positions were already assured at the time of appointment. (Mahari"l Diskin)
1) This would have given the nations of the world who turned down the offer of accepting the Torah a legitimate excuse. They might claim, "The bnei Yisroel accepted the Torah because it was offered to them in their own land. We were not offered the same."
2) Alternatively, this would have engendered jealousy among the tribes, as one tribe would have boasted, "The Torah was given in our tribe's land portion." (Chizkuni)
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