Devarim as THE Torah

The book of Devarim is traditionally understood as a review and reminder to both the Israelites in the wilderness and the readers of the Torah of the laws related at Sinai and the events that occurred in Egypt and the wilderness. This approach, however, faces serious difficulties when we consider the many differences and contradictions between what is told in Devarim and what we find in the previous books of the Torah. If Devarim was meant to remind the reader of what was stated in the previous books, how might we to explain the blatant omissions, additions, and contradictions?

One critical approach to the book of Devarim, or to major parts of it, sees the book as originally meant to be the one and only version of the Torah, supplanting material now found in the other books. The words וזאת התורה אשר שם משה לפני בני ישראל, “This is the Torah which Moses presented to the people of Israel” (Deut. 4:44) are to be read emphatically: This book of Devarim is the Torah, and not other books!

Many of the contradictions between Devarim and the other books of the Torah point to Devarim’s attempt to supplant earlier traditions and rewrite them in the service of new agendas.[1] The authors of Devarim did not want those earlier sources to be authoritative and that is why both the stories and the laws were rewritten in new ways. At the end, however, Devarim was accepted as Torah but only side-by-side with the books and traditions that it sought to replace! As we continue to read Devarim, it is important to keep this, as well as some other factors in mind. I will illustrate this by taking a new look at a passage that has already been discussed several times in TheTorah.com: the appointment of judges in the wilderness.

The Two Different Judge Narratives

I would like to return to how Devarim 1:9—17 alters and revises the story of Yitro in Shemot 18:13—27. The analysis here will partly overlap with two other insightful TABS pieces – that of Shoshana Cohen on Parashat Devarim (“Why Devarim Matters to Jews Today” ) and that of Jeffrey Tigay on Parashat Yitro (“Preserving Multiple Opinions”). But it will also proceed in a different direction, and highlight a new issue that readers should keep in mind throughout the book of Devarim, namely that the authors of Devarim did not revise the exact biblical text of the previous four books as we have them, but a different, earlier form of that material.[2]

According to Devarim 1:19—17, Moses turned to the Israelites with a request “at that time,” that is, after God told the people to leave Horev (=Mt. Sinai) and journey toward the land (verses 6—8). He asked that they provide him with wise men from their tribes that he could appoint for them as leaders. This was necessary because they had become so numerous that Moses could not carry the load of their many conflicts and disputes without assistance. The people approved of this suggestion, and Moses appointed the men as “officers of thousands, and officers of hundreds, and officers of fifties, and officers of tens, and officials, tribe by tribe” (verse 15). He then told the judges to hear out all cases and adjudicate justly, and to bring him the difficult cases alone (verses 16—17).

This passage reminds us of the story of Yitro in Shemot 18:13—27. The similarities are unmistakable, but so are the differences. In Shemot, we are told that Moses was sitting in judgment over the Israelite disputants from morning to night, until Yitro[3] told him that his system of judging everyone by himself was inefficient and unsustainable both for him and for the people. Yitro therefore offered Moses some sage advice. He must find honest and God fearing people from the nation and appoint them over the people as “officers of thousands, officers of hundreds, officers of fifties and officers of tens” (verse 21). They would adjudicate the small disputes whereas Moses would be given the large ones (verse 22). Moses took Yitro’s good advice, did as he suggested, and then sent his father-in-law back to his home (verses 24—27).

Noting the Differences

Of course, the most blatant difference between the passages is that Devarim makes no mention of Yitro.[4] The account presented in Parashat Devarim presents the clear impression that the idea of appointing the various officers, leaving Moses to try the difficult cases alone, was Moses’.

But other differences are also worth noting. The parashiyot differ with regard to the necessary qualifications of the people that are to be appointed as leaders or judges. In Parashat Yitro (v. 21), they must be “capable men who fear God, trustworthy men who spurn ill-gotten gain” (אנשי חיל, יראי א-להים, אנשי אמת, שנאי בצע). In Parashat Devarim (v. 13) they must be “men who are wise, discerning, and experienced” (אנשים חכמים ונבנים וידעים). Parashat Yitro emphasizes the qualities of honesty, integrity, fairness and general morality (note that the immorality of Amalek in Devarim 25:18 is referred to as lack of fear of God.) Parashat Devarim emphasizes sharp intellectual and analytic skills. This is a significant difference; we all know people who are very God-fearing people that are not all that sharp, and some very sharp intellects who have little integrity.

Another difference concerns the role of the people in the appointment of the various officers. While Devarim has the people choose the officers that are to be given to Moses for him to appoint, no mention of this role is found in Parashat Yitro, where Moses is to choose the officers by himself (Shemot 18:21).

What Devarim Is Trying to Address

The authors of Devarim seem to be interested, first of all, in removing Yitro. Yitro was, after all, a non-Israelite and a Midianite priest to boot. The idea that such a man was Moses’ father-in-law was surely somewhat of an embarrassment (cf. also Numbers 12:1). Devarim is a strongly nationalistic book that continually emphasizes the elevated status of the people of Israel in relation to other nations (4:7, 19—20; 18:14—15; 28:1), and authors with such a strongly nationalistic orientation would hardly want to highlight that something as fundamental as Israel’s judicial structure was introduced by an outsider.

Also, the depiction of Moses in Parashat Yitro is really quite unflattering. He is so engrossed in dealing with the daily problems of adjudicating that he does not realize what the situation demands until Yitro castigates him: “what is this that you are doing to the people?” (v. 14); “the thing that you are doing is not good” (v. 17). Aside from making things needlessly difficult for himself, Moses seems oblivious to the long lines of people waiting endlessly for their moment in court! Devarim, which in general depicts Moses in more heroic terms, depicts Moses in a more positive light as realizing the need to delegate authority on his own. Moses in Devarim is the greatest wise man, so he certainly doesn’t need advice from some Midianite priest!

Devarim also adds a democratic element that is completely lacking in Parashat Yitro. As noted above, in Parashat Yitro Moses chooses the people who will serve as judges and appoints them all on his own. In Devarim, in contrast, while Moses still appoints the officers, the people are the ones that select them for him, and Moses does not do anything before consulting with the people and obtaining their approval of the idea. Implicit in this is the striking idea that the people, at least in principle, have veto power over Moses’ political suggestions. The approval of the people is of vital importance. In contrast, in Parashat Yitro, the people learn about the new judicial system only when they discover that it has been instituted.

Devarim’s new democratic impulse is also highlighted in the words of Moses to the judges in Devarim 1:16—18:

I commanded your judges at that time saying, hear out the cases of your brethren and adjudicate justly between a man and his fellow or resident alien (גר). Do not be partial in judgment: hear out the small as well as the large (כקטן כגדול תשמעון). Fear no man, for judgment is God’s. And any case that is too difficult for you, you shall bring it to me and I will hear it.

Moses sounds the democratic note here in the emphasis that all members of the society must be treated equally. The גדול refers to the important person who has a lot of clout and carries a lot of weight. The natural tendency would be to fear him and therefore judge in his favor, this is here strictly prohibited since the judge must be fearless and must treat the nobility just as he would treat the resident alien (גר) or the poor. This statement also implies that each person must be given his or her day in court. Even the claims of the poor or a resident alien must receive a hearing just as much as the rich and famous.

A Polemic in Devarim

This emphasis has the sound of a polemic. Why is Devarim protesting so much? I believe that this is one of several cases that are best explained by suggesting the authors of Devarim had a different, earlier form of what is now in the biblical text.

There is a significant inconsistency within the report in Shemot itself. According to the report of verses 24—26, Moses listened to the advice of his father-in-law. He chose and appointed the officers, and they judged the people concerning small matters while bringing to Moses all difficult matters:

17 Moses’ father-in-law said to him… 22 “let them judge the people at all times. Have them bring every major dispute (הדבר הגדול) to you, but let them decide every minor dispute (הדבר הקטן) themselves. Make it easier for yourself by letting them share the burden with you. 23 If you do this—and God so commands you—you will be able to bear up; and all these people too will go home unwearied.” 24 Moses heeded his father-in-law and did just as he had said. 25 Moses chose capable men out of all Israel, and appointed them heads over the people—chiefs of thousands, hundreds, fifties, and tens; 26 and they judged the people at all times: the difficult matters (הדבר הקשה) they would bring to Moses, and all the minor matters (הדבר הקטן) they would decide themselves (NJPS).

The distinction in verse 26 is between הדבר הקטן, the minor dispute, and הדבר הקשה, the difficult dispute.[5] But when we read Yitro’s advice in verse 22, we find that he makes a different distinction between the minor dispute and the major dispute (הדבר הגדל יביאו אליך וכל הדבר הקטן ישפטו הם). A major dispute is not necessarily difficult to decide on; on the contrary, it may very well be cut and dried. It could refer to severe issues like murder or adultery that could entail the death penalty as opposed to smaller issues that involve smaller penalties. But it might also include disputes that involve large sums of money and therefore involve the upper classes, as opposed to disputes concerning petty theft of the simple folk.

The distinction between the formulation of verse 22 and verse 26 is problematic, and suggests that verses 25—26 were added after the five books of the Torah were already redacted together. They were written by an editor who attempted to harmonize some of the divergences between the different original sources.

Without these two verses, we have a perfectly coherent text.[6] Verse 24 tells us, “Yitro heeded the voice of his father in law and did all that he said.” There was no need, originally, to tediously repeat, “And Moses chose men of valor from all Israel and he appointed them heads of the people, officers of thousands, officers of hundreds…” In the original story, then, verse 27 followed verse 24: “Then Moses sent off his father-in-law and he went to his land.” Verses 25—26 were needed only to reinterpret the story at hand in light of the version that is found in Devarim. They were added specifically for the sake of verse 26, to reinterpret the “big,” or “major” cases as implying “difficult” ones.[7]

The original form of the Yitro story, then, distinguished between more important (=bigger) cases and less important cases. Moses, as the judge with the highest status, would not deal with cases that were of petty importance. The man who was “very great” (גדול מאוד; Shemot 11:3) would only try the important cases, and the petty crimes of the everyday masses would be tried by the regular judges of the people (verse 22).

Understanding Devarim against the Background of Shemot

It is against this distinction between important cases and unimportant ones, which implicitly includes a distinction between important litigants and less important litigants, and between more important judges and less important judges, that the version of Devarim protests so adamantly. Moses himself tells the judges that they must make no distinction between the small and the large, the esteemed and the lowly. If all citizens and even resident aliens (גרים) are of equal status, then they must all get an equal hearing in court: כקטן כגדול תשמעון. And if they must accept the lowly and the esteemed without discrimination, it would hardly be appropriate for Moses himself to make such distinctions regarding his own task of judging.

If there must be no correlation between important litigants and important judges, what is the special role of Moses? Devarim suggests very innovatively that instead of assigning Moses the big (גדול) or important cases, he adjudicates the difficult (קשה) cases. This coincides with the revision of the required qualifications of the judges from honesty and integrity to wisdom and understanding, which are apparently taken as subsuming and going beyond mere integrity. If all of the judges are to be men of simple integrity alone, there is little basis for excluding them from the task of hearing the important cases other than the fact that they are lower in status than Moses.

Since in Devarim the judges must posses not only integrity but also sharp wits, Moses is unique as an excessively wise judge who can use his wisdom to help solve particularly difficult cases. This coincides with Devarim 34:9, which states that when Moses ordained Joshua to lead the people, he imparted the spirit of wisdom onto him. Moses is thus depicted as akin to Solomon, who used his great wisdom to solve the case of the contested baby of the two prostitutes (1 Kgs. 3:16—28). These prostitutes were hardly distinguished members of society, yet they get their full hearing in court with the King of Israel because it is a difficult case that a lower court could not resolve. Disputes that are not particularly challenging or difficult would be tried by regular judges no matter how important the litigants or cases may be. Only if the judges are stumped do they turn the case over to the superior wisdom of Moses (or alter, Solomon).

Herein lies another significant modification of Devarim. Since all cases of all litigants are of equal importance, and since judges are also equal in importance, all cases go to the regular judges and there is no initial distinction that is made between them. Only after the judges have found the case difficult to determine do they hand it over to the court of Moses.[8] In Yitro, in contrast, the division of labor is predetermined. As opposed to a difficult case, whose character as such is discovered only in the course of the trial, the important case is known from the start. The important cases are thus given to Moses from the start and do not first go through the lower courts. And the unimportant cases will remain unimportant no matter how difficult they may be to resolve, so they will never appear before Moses.

The king, Devarim 17:20 tells us, must never lift up his heart above his brother. Since Moses is thought of in Devarim as the king-like supreme judge,[9] he must also not lift up his heart above his brethren. It is not below his dignity to try the smallest of cases, just as it is not below his dignity to ask the people for their approval of his judiciary reforms, or to choose for themselves the judges that will serve them.[10] This must also be connected to the uniquely dignified status that the book of Devarim bestows upon the people of Israel. Since Israel is God’s chosen nation it is appropriate that they have the ability to veto the leader’s decision and to heighten their role in the decision making process.

Conclusion

In sum, there is a strong democratic and egalitarian impulse in the book of Devarim and this informs the revision of the story of the appointment of judges. Even though Moses is superior in terms of his level of wisdom, this in no way entitles him to greater dignity and honor. The role of the leader of Israel is to serve the people and not to use them for his own self-aggrandizement. The special dignity of Israel that is implicit in the idea of the chosen nation leads to a more democratic and egalitarian society. It is important to keep this in mind when reading the following narrative and legal sections of the book.

I began by noting that Devarim is probably best understood as an attempt to supplant earlier textual traditions. As we know, this attempt did not succeed, and ultimately some late redactors added material in different parts of the Torah to soften some of the contradictions between these originally separate sources. The failure of Deuteronomy to supplant earlier materials, however, is our great gain, for it allows us to appreciate the Torah “process.”

The Torah was never a dead letter, but, from the very start, an organically evolving expression of Truth. New and important spiritual insights were not rejected because they did not fit in with the Truth of the received tradition. Tradition, rather, was rewritten and reworked to incorporate the newer understandings of Truth without discarding the old. All of this was and should continue to magnify and glorify Torah (להגדיל תורה ולהאדיר).