By Rabbi Yitzchok D. Frankel
Agudath Israel of the Five Towns
You shall seek out from among all the people men of valor, fearing of G‑d, men of truth, despising unjust gain. And you shall place them upon the people as rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens.
Yisro’s judicial system sounds like a good idea, and so it is assumed to be. After all, Hashem agrees to it and Moshe Rabbeinu implements it. But to properly appreciate what happened here, we have to look at how it is treated in parashas Devarim. There, the deeds of Klal Yisrael during their 40 years in the desert are viewed with hindsight.
In Devarim, the narrative picks up as they leave Har Sinai and continues on from there. Hashem tells them to travel from Har Sinai to Kadesh Barnea, and so forth, leading into the story of the meraglim and the resulting stay of 40 years in the desert. In the course of all this, seemingly out of nowhere, Moshe Rabbeinu goes off on a tangent and says: “I said to you at that time, saying: ‘I cannot bear you alone.’” (Devarim 1:9)
This seems quite out of place. Moshe Rabbeinu was uttering blessings: “Hashem your G‑d increased you, and today you are numerous like the stars of the heavens” (1:10). Then it abruptly goes into the tone and tune of Eichah: “How can I bear on my own your trouble, burden, and strife?” (ibid.1:12)
With that somber introduction, we are told about the whole hierarchical judicial system that was designed to take the “burden” off of Moshe Rabbeinu’s shoulders. Interestingly enough, this new system was presented to the people for their approval. Their response is recorded: “And you answered me and said, ‘The matter that you spoke of is good; let it be done.’” (ibid. 1:14)
Once that’s over, the previous narrative picks up again and continues from where it left off. We need to understand the reason for this interruption which takes us off on a strange tangent. And why is it heralded by the somber call of “eichah,” the word of exile and destruction? Why here? What does this parashah have to do with churban Beis HaMikdash and Tishah B’Av?
It appears from what is related to us in Devarim that our present judiciary system arose because of “How can I bear on my own your trouble, burden, and strife?” It appears that a dialogue, a shakla and tarya if you will, took place between Moshe Rabbeinu and Klal Yisrael. They discussed the pros and cons of Yisro’s new idea, as Yisro had advised Moshe that “[this] that you do is not good . . . The matter is heavier than you.” (Sh’mos 18:17,18)
Klal Yisrael enthusiastically endorsed the proposal, saying, “The matter that you spoke of is good; let it be done.” It seems that Yisro’s bill passed unanimously.
What were they so excited about? Rashi comments: “You decided that the matter was to your benefit. You should have replied, ‘Moshe Rabbeinu, from whom is it fitting to learn—from you or from your disciple?’” (Rashi 1:14)
We learn from Rashi’s incisive comment that Moshe presented the idea to Klal Yisrael in the hope that they would reject it! He hoped they would realize the value of learning directly from Moshe Rabbeinu and living according to his decisions. Why did they prefer Yisro’s hierarchical system?
Rashi explains: “But I knew your thoughts. You were thinking, ‘Now, many judges will be appointed over us. If the judge is not familiar with us, we will bring him a gift and he will favor us.’” (ibid.)
Klal Yisrael wanted a system they could abuse in order to get their way. They wanted to undermine true judgment. They were frustrated with Moshe Rabbeinu’s absolutely impartial judgments: no favoritism, no bribes, no nothing. Now we can understand why Moshe said, “How can I bear on my own your trouble, burden, and strife?” As Rashi explains there, “This implies that Israel were ‘trouble makers.’”
The fact that the people acquiesced to the proposed system pointed to a lack of harmony in Klal Yisrael. There were serious conflicts between people, and they were not willing to bend and accept a true Torah decision.
I would suggest that this is why the Torah interrupted the narrative of Devarim to tell the story of Yisro’s judicial system. This story serves as a most apropos introduction to the events following it, which culminated in the cheit hameraglim, the incident that both occurred on Tishah B’Av and created the reality of Tishah B’Av. This is why we suddenly find ourselves confronting eichah, the word connoting destruction and exile.
“Three people prophesied using the term eichah (‘how’): Moshe, Yeshayah, and Yirmiyah. Moshe said, ‘How can I bear on my own . . .’ Yeshayah said, ‘How has she become a harlot . . . ,’ Yirmiyah said, ‘How has she dwelt alone . . .’” (Eichah Rabbah 1:1)
Moshe Rabbeinu said eichah when Klal Yisrael were at their highest level. However, these seeds of discontent between man and his fellow led to the cheit hameraglim and ultimately to the destruction of the Beis HaMikdash. Moshe’s eloquent eichah was elicited by a discord between Jews, which at the time was still hidden deep within their hearts.
Yisro’s suggestion was accepted for all the wrong reasons, and came at a most unfortunate time. Although to Yisro it indeed seemed like a good idea, from the perspective of the Jews it should have been rejected. The partial narrative of the episode, which is offered here in parashas Yisro, does not reflect the negative impact it ultimately had.
There are two problems with our thesis that Yisro’s counsel was flawed. First, here in parashas Yisro, we see no hint of criticism towards Yisro. On the contrary, he is afforded the greatest of honor. Second, in parashas Devarim, Yisro isn’t even mentioned while his judicial system is roundly criticized. Why is he left out of the picture?
In order to answer these questions, let us first understand what bothered Yisro so much when he saw Moshe Rabbeinu sitting and judging the people all by himself.
He said, “What is this thing that you are doing to the people? Why do you sit alone, and all the people stand by you from morning to evening?” (Sh’mos 18:14)
“From morning to evening”—Is this possible? Rather, it means that a judge who renders an absolutely true judgment, even if it took him a short time, is considered by the Torah as if he engaged in Torah study all day. And he is considered as if he became a partner with Hashem in the creation of the world, about which it says (Bereishis 1:5): “There was evening and there was morning . . .” (Rashi, ad loc.)
Rashi is clearing up a certain misconception we might have. He says it is impossible that Moshe was judging the people all day, and that is not at all what the verse meant! It meant that Moshe was rewarded as if he had spent all day judging them, although it could actually have taken just a short time. So now we ask: How long was Moshe actually sitting and judging the people?
My rebbe, HaGaon HaRav Dovid Feinstein, shlita, explains that erev (“evening”) could mean noon. This is because the Torah’s expression bein ha’arbayim, “between the evenings,” refers to the period between noon and dusk. In the Torah’s language, there are two “evenings”: Noon and dusk.
Accordingly, Moshe judged the people from morning to noon, half a workday. Why did Yisro decry this by saying that (18:18) “You shall surely wither away, not only you but also this people”? What was so terrible? HaRav Feinstein, shlita, explains that “wither away” did not refer to Moshe’s lack of stamina, but that the whole idea of judging Klal Yisrael would die out if the system was left as is. Why? Because Moshe was not going to live forever. Who was going to take over after he was gone? There would not be any trained judges to follow in Moshe’s footsteps. There would be anarchy and the whole system would fall apart.
Yisro was not suggesting that Moshe give up his judiciary position, but that he train judges to take over in the future. Actually, this idea existed independent of Yisro’s suggestion. Moshe Rabbeinu was commanded on Har Sinai to establish a judicial system. The judicial system was not really Yisro’s own institution; it was already included in the Torah, already revealed to Moshe on Har Sinai. However, the Torah gives Yisro the credit for it. As Chazal say, his name was יתרו because he “added” (יתר) a passage to the Torah.
This is similar to the passage of Pesach Sheini, which was transmitted due to the request of those who were tamei at the time of the first korban Pesach in the desert. The same is true with the passage of inheritance laws, which was imparted due to the request of Tzelafchad’s daughters (see Rashi, Bamidbar 27:5). All these passages are integral to the Torah, but are attributed to the people whose actions caused the passage to be stated at that particular time.
This answers our questions. First of all, Yisro is credited and honored because he didn’t say anything contrary to Hashem’s will. He wasn’t suggesting a judiciary to replace Moshe, but rather the concept of training others who would take over after Moshe was gone. But when Moshe Rabbeinu presented the idea to Klal Yisrael, they wanted the judiciary to be instituted immediately. They should have said: We understand the need to plan for the future but we in no way desire Moshe Rabbeinu to be replaced as long as he is still here with us. Since this was not what Yisro had suggested, his name is not mentioned when the criticism is given. v
Rabbi Frankel can be reached at firstname.lastname@example.org. At local stores: Machat shel Yad Shemos.