Does Justice Bring Peace?

This week’s alumni Dvar Torah is by Miriam Gedwiser

Shemot 18:23 contains the third and final appearance of the word שלום in the book of Shemot. (All three pertain to Yitro.)  Yitro advises Mosheh that if God approves of, and Mosheh implements, Yitro’s plan for the division of the judicial workload, “וְיָכָלְתָּ עֲמֹד וְגַם כָּל הָעָם הַזֶּה עַל מְקֹמוֹ יָבֹא בְשָׁלוֹם” (“then you will be able to endure (lit. stand), and also this whole people will go to its place in peace”).  Although most commentators read this prediction of שלום for the people as having to do with the lessening of the administrative burden of seeking justice, the Netziv offers a fascinating reading that gets to the nature and benefits of decentralized, even imperfect, justice. Bear with me while we get there.

The first part of Yitro’s prediction seems pretty straightforward:  Adopting Yitro’s suggestion will ease the burden off of Moshe. Literarily, Ralbag notes that Yitro’s language of “you will be able to endure/stand,” seems to bookend Yitro’s critique in verse 18, נָבֹ֣ל תִּבֹּ֔ל גַּם־אַתָּ֕ה גַּם־הָעָ֥ם הַזֶּ֖ה אֲשֶׁ֣ר עִמָּ֑ךְ (You will surely wear out both yourself and this people that is with you).  Yitro’s new routine can be sustained indefinitely, as opposed to the unendurable status quo. We may also hear an echo of Yitro’s initial question in verse 14, מַדּ֗וּעַ אַתָּ֤ה יוֹשֵׁב֙ לְבַדֶּ֔ךָ, why are you sitting all alone? If he adopts Yitro’s suggestion, Moshe will be able to reduce the burden of “sitting” to judge all day and be able to stand up.

What are we to make of the end of Yitro’s prediction, וְגַם כׇּל הָעָם הַזֶּה עַל מְקֹמוֹ יָבֹא בְשָׁלוֹם?  The commentators are all over the map in identifying the “people/עם” in question, the “place/מקום” to which they are to be brought, and the nature of the “peace/שלום” they will have there.  Ibn Ezra suggests what strikes me as the pshat: By following Yitro’s suggestion Moshe can help the Israelites make it to Eretz Canaan. Others suggest that Yitro means that the עם who gather around Moshe daily (see verse 14) will have their burdens eased as well, because they will not need to travel to the Levite camp for justice once local judges are established (see, e.g., Chizkuni) or because they will not need to wait all day for a hearing (see, e.g.,  Ralbag). What these interpretations share is that the שלום in question is a product of procedural improvements, and does not have to do with the substance of the ruling.

Ibn Ezra and R. David Tzvi Hofman understand the שלום in question to be more substantive:  The backlog of cases coming to Moshe was deterring some people from seeking legal recourse for their disputes at all, leading to those disputes becoming entrenched and the disputants embittered.  This understanding is in keeping with the Talmud, Sanhedrin 7a, which cites our verse to prove that one who leaves court having been stripped even of his cloak (i.e., having suffered a large financial loss) should “sing a song and go on his way.”  A proper legal resolution is itself a cause of celebration, and its finality a source of שלום, even for the side that loses money. (See also Seforno.)

Against all this background enters the Netziv (harchev davar to 18:23).  He connects this verse to a talmudic passage on Sanhedrin 6b (link: Sanhedrin 6b:2).  The Talmud there discusses the merits or demerits of judicial compromise (pesharah).  The slogan on the anti-pesharah side is יקוב הדין את ההר, let the law pierce the mountain – i.e., let the chips fall where they may in terms of winners and losers, the law is both inflexible and overpowering.   This slogan, in turn, is associated with Moshe, who perhaps not coincidentally returned the law from a mountain himself.

Netziv argues that the halachah is that pesharah (judicially enforced compromise) is a mitzvah only before it is clear which side has the winning argument.  In Moshe’s case, according to the Netziv, because Mosheh had such facility with the details of Torah law, he never found himself in that situation; the law was always clear to him, so compromise was never the right solution.

By appointing more judges who knew less than Moshe, Moshe might have worried that he would be delegating his job to people who could not do it as well as he could.  Netziv reads Yitro as affirming this concern while also turning it on its head. Yes, the new judges might not always be sure right away who was right. But this actually opened up the possibility for them to seek pesharah, compromise, which in turn generates שלום, increased satisfaction with and harmony regarding judicial outcomes.

According to the Netziv, Yitro was advising Moshe to delegate to judges whom everyone knew would be less skilled than Moshe at speedy halachic evaluation.  But rather than see this as a loss or dilution, Yitro saw it as an opportunity. These new judges might not be as good at quickly spotting and determining halachic issues, but it was precisely this deficit that would allow them to generate better, more שלום-like outcomes in some cases.

Yitro’s insight was not simply “delegate more,” but that the apparent downside of delegating was not the end of the story.  While delegating could result in judges who were less competent than Moshe in Moshe’s area of comparative advantage (speedy halachic determination), it could also be seen as resulting in differently competent judges, whose own comparative advantage, the ability to generate pesharah, would enrich the people.

Perhaps this is why Yitro himself is the character associated with שלום in this book (See note 1).  Yitro’s outsider’s perspective, his capacity to re-envision and reframe the situation, is what allows rigidly legalistic Moshe to accept a necessary change.  Just as additional judges who see the world differently than Moshe will open new possibilities for the outcomes of Israelite legal cases, so Yitro, a leader who sees Moshe’s situation differently than himself, can open Moshe to new outcomes as well.

Miriam Gedwiser (SBM 2002) teaches Talmud and Tanakh at Ramaz Upper School and Drisha.

 

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