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It was the next day, and Moses sat to judge the people. The people stood by Moses from the morning until the evening. Moses’ father-in-law (Jethro) to him… “What you are doing is not good! You and the people with you will become worn out – for this… is too hard for you to do alone… You shall choose from amongst the people men of accomplishment, G-d fearing people, men of truth… appointing them leaders of thousands, hundreds, fifties, and tens… they shall judge the people at all times – every major matter they shall bring to you and every minor matter they shall judge…” (18: verses selected from 13-22).
The passage then relates that Moses took Jethro’s, his Midianite father-in-law’s advice, and appointed a hierarchy of judges to deal with routine issues, with Moses himself being available to focus on the difficult cases.
Surely Moses had only that very day just started to judge the people. Would he not have been too busy dealing with the urgent cases to be able to sit down and organize a judiciary system on the spot? Moses would have no doubt initiated the more efficient system at the earliest possible opportunity. What was so special about Jethro’s advice to Moses that earned it a place of merit in the Torah – and indeed why does the Torah give him great credit for his suggestion: ‘Moses listened to his father-in-law and did all he said’ (18:24)?
Abarbanel, in dealing with this problem, explains that Moses knew very well that the Israelites needed such a hierarchical system: one judge – however great – would indeed wear himself out very quickly. He claims that Moses initially rationalized as follows. Because the Torah would be soon revealed (according to the Talmud: Avodah Zarah 24a which holds that the above episode took place before the Torah was given), Moses thought it would be better for G-d to institute His system, rather than doing so himself based on mere human understanding, and he was willing to face a short period of overwork to this end. Indeed, although he accepted Jethro’s advice in principle, he did not follow it to the letter. For example, Jethro recommended that the judges should have certain specific virtues, but ‘wisdom’ – in the sense of knowing and intelligently applying a body of law, was not among them. Moses however demanded first and foremost that the judges were indeed ‘wise’ and that they could administer judicial procedure in a correct and fair manner (Deut. 1:13-18). Thus Abarbanel holds that even if Moses appeared to accept his advice and thank him for it, it was only in recognition for his sincere effort, and the Torah added the section about Jethro for that reason. This is shown by the fact that Moses is not recorded as having mentioned Jethro’s name when, forty years later - shortly before his death, he recounted the way he established the Israelite legal system (Deut 1: ibid).
A possible suggestion to the above problems would be as follows. Jethro was indeed a very perceptive and wise man, and Moses took his advice for one reason only – that he knew Jethro was right. This is elaborated below.
Initially Moses did not favor having such a judicial system. He felt that appointing many judges would lead to a Parkinson’s rule of ‘the more judges, the more litigation’. Were he, Moses, the only judge, people would think twice before getting involved in disputes in the first place. In many cases they would be ashamed that their actions and claims would be personally scrutinized by so great a personality as Moses. Moreover – and most important – the long queue for Moses attention would mean that many litigants would be happier to come to an amicable out-of-court agreement – something that Moses preferred to a court case. (In addition, if they had to expend much effort to see him, they would greatly respect Moses’ judgment, and they would be more likely to follow it to the letter.) Thus once the people got used to the idea that legal wrangling was something to be used as a last resort, Moses would have less work to do, and the initial period of overwork would only last for a short time.
Jethro’s experience of people in general made him convince Moses otherwise. From a distance he ‘read’ the Israelites correctly and knew that making judicial procedure hard to access would not advance the cause of peaceful agreements at all. He ‘read’ the Israelites as a people who were litigious by nature – as Moses himself exclaimed some forty years later: “How can I alone carry on your contentiousness, your burdens, and your quarrels?” (Deut. 1:12) The Midrash (Sifri 12) explains these words as referring negatively to the Israelites’ behavior during legal proceedings. For example, if a litigant saw that his rival was winning, he would insist on a delay, claiming (understood - without any real foundation) that he had more witnesses and proofs, or that he was exercising his right to call for more judges for the court. Moses learnt that side of the Israelites’ nature the hard way – through forty years of leading them through the wilderness. Jethro, by contrast, perceived the quarrelsome nature of the Israelites in his initial encounter with them. He advised Moses that the Israelites needed more judges because of the type of people they were. And Moses, the text states, recognized and heeded his advice…
This does not mean that being litigious is necessarily a bad characteristic. Many people today pay money and receive unsatisfactory goods and services, with the attitude of ‘just not being bothered to complain’. There are manufacturers, teachers, lawyers, and doctors who have got away with bad service and indeed caused harm because they work for a clientele that thinks it ‘isn’t nice to complain all the time’. These good people forget that in neglecting to complain they make it easier for other people to be cheated in the future… Being litigious is not a positive or a negative trait by itself – it depends whether it is indeed used positively or negatively, but it is a trait, and Jethro reckoned it to be characteristic of the Israelites.
We may also learn that in negotiation with nations we have take in account their national characteristics. This does not mean crude stereotyping of individuals, but it does mean trying to get to the fundamentals of their thinking, rather than see them as looking at things the same ways as we do… This principle indeed seems to have underlain the message that Jethro gave to Moses.
This article is provided as part of Shema Yisrael Torah Network
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