Parashat Yitro 5775 – When Judges are Priests: On the place of the Teachers in Relation to the Law

When Judges are Priests: On the place of the Teachers in relation to the Law

Leading up to the Revelation at Har Sinai, the people are commanded not to approach the mountain (Shemot 19:12-13). Bizarrely, right before the ten commandments, perhaps the most pivotal moment of  Sefer Shemot, Moshe is commanded to once again tell the people to stay away from the mountain (19:21-24). While superficially redundant, this second command differs from the first in that it refers not only to “the people” but also to “the priests that approach God” (19:22). This immediately presents a problem as the priests (כהנים) that the Torah normally speaks of, Aharon and his sons, have not been appointed yet, nor has the Mishkan, their place of work, been built yet, nor have the relevant laws even been given yet. Though there are multiple approaches within the traditional commentators when it comes to understanding this phrase, we will focus on the rather unique approach of R’ Hezekiah ben Manoah (more commonly known as the Hizkuni). In order to fully understanding why he chose the approach that he did, we will first look at some of the more common understandings, enabling us to appreciate the unique and powerful message of the Hizkuni’s approach.

The most common understanding of the “priests that approach God” is that they are the firstborns of the Israelite nation. This approach originates in the gemara (Bavli, Zevahim, 115b), and is taken by R’ Avraham Ibn Ezra, Rashi, Rashbam, and Rabbeinu Behaye, as well as being mentioned as a possibility in the Ohr HaHayyim and the more modern Daat Mikra commentary. This interpretation is based on a few factors. First is the dedication of the firstborns to ‘א in Shemot 13, as a consequence of ‘א saving them from the death of the firstborns in Egypt. Perhaps more crucial though is the replacement of the firstborns with the Leviim in Bamidbar 3 (mentioned again in Bamidbar 8). The Leviim are dedicated to the work of ‘א’s Sanctuary, the Mishkan (Bamidbar 18:6). This implies that, before they were replaced by the Leviim, the firstborns were in charge of the work of the mishkan. However, this approach suffers from several problems. First is the understanding of the phrase “that approach God.” Ibn Ezra mentions two understandings of this phrase. The first is that this “approach” is their position during the Revelation at Sinai, that the firstborns will be standing closer to the mountain than the rest of the Israelites, though still beyond the border mentioned in Shemot 19:12-13. The problem with this is that the context of the phrase “that approach God” is the command for the priests to stay beyond the fence, implying that for some reason the firstborn would think they do not need to stay beyond the border. Thus the command has to be in response to something that happened in the past that would give the priests this impression. This is presumably what motivates Ibn Ezra’s second understanding, that the “approach to God” described in this verse is a reference to the priests bringing sacrifices on the altar that Moshe built after the war with Amalek. While this is certainly possible, and the altar was built just two chapters previous to our verse making it somewhat contextual, it suffers from not being explicit in the text. Without any explicit textual mention of sacrifices being brought on the altar, it is more likely that the altar was built as a memorial and as an act of gratitude to ‘א, in the manner of the Avot (cf. Bereishit 12:7-8, 13:18, 33:20, 35:7). However the larger issue with understanding the “priests” as the firstborn is that when the sanctified firstborn are replaced, it is not by the priests, but by the Leviim, so to say that they are priests here in Shemot 19 would be a little strange.

Though mentioned by fewer commentators, there is an approach that avoids this issue. Both Rabbeinu Behaye and the Ohr HaHayyim mention the possibility that the “priests that approach God” of Shemot 19 are the sons of Aharon, who will in the future be appointed as priests. This however suffers from the same lack of precedent as the previous interpretation. Simply put, before Aharon’s sons are explicitly appointed as priests in Sefer Vayikra, they have no reason to think they should stand closer to the mountain than anyone else, and so it is unlikely that they would have to be told not to do so.

This brings us to the comment of the Hizkuni. The Hizkuni actually presents two possibilities. His first suggestion makes use of the initial understanding, that the priests are the firstborns, but changes it in a way that avoids the problematic lack of precedent. Hizkuni says that it was the 70 Elders that were firstborns.[1] This has the advantage of the firstborns approach in that they are sanctified to ‘א, but it also has an explicit textual precedent. In Shemot 18, the chapter immediately prior to the one we’re dealing with, the Elders eat a meal with Yitro and Moshe “before ‘א” (18:12). While the exact meaning of this phrase is unclear, it would seem to indicate a degree of closeness or familiarity with ‘א that would require them to be specifically told that they need to stay back. However, this approach can be understood in one of two ways. The first is that the “Elders” is essentially a subcategory of the “Firstborns.” While this is possible it is also somewhat strange, and not only because it is unlikely that every single one of the Elders was also a firstborn. More importantly, in this understanding the seventy Elders are firstborns, but there were plenty of other firstborns who aren’t in this category. Thus the fact that the Elders are firstborns would be merely coincidental, and it is strange that the Hizkuni would mention it. More likely is the second reading, that the Elders and the Firstborns are two separate but identical categories, both of which contributed to them being called “priests.” Thus both the sanctification to ‘א and the eating before Him are significant. This too however suffers from a strangeness, namely that not only would all of the Elders be firstborns, but that there would only be 70 firstborns in a group with 600,000 men. This is likely what prompted Hizkuni to offer his second, more original, understanding.

Hizkuni’s second suggestion is that the “priests that approach God” of Shemot 19:22 are the Judges and Officers appointed in Shemot 18. While his assigning of the term “priests” to the judges is quite original, this understanding has a certain logic to it, as Hizkuni explains. As support for this approach, Hizkuni quotes Devarim 1:17, “for the judgment is God’s.” Thus their very nature as judges has a certain logic to it. Meanwhile, Sefer Devarim also conflates the priests with the teachers of the Law (31:11, 33:10), a job specifically referenced in context of the appointment of the Judges in Shemot 18 (vss.16, 20). So while the priest would be the teachers once they get into the land, Hizkuni sees the teachers as the priests before the giving of the Torah. Their special positions as teachers and Judges makes them automatically closer to ‘א , not to mention it separates them from the rest of the people who they would have seen as students. This alone might have been reason enough for them to think that they should stand closer to the Revelation at Sinai, but, as Hizkuni points out, there is another reason for them to think that. The Revelation at Sinai is the revelation of the Law, and as those responsible for teaching and adjudicating that law, it is quite natural that they would have thought they should be closer. This would not have been a privilege, but a responsibility, to be as intimately involved in the giving of the law as possible. In this, however, they are rebuffed, as Moshe is specifically sent down to tell them that they are not separate, that the entire people is equal before the law. The only exception is Moshe (Aharon is included only in his capacity as Moshe’s spokesperson), who throughout Bnei Yisrael’s journey in the Wilderness receives the law via prophecy, while the judges in the desert and after Moshe’s death do not (I have written about this here). Thus, while the judges and teachers of the Law are close to ‘א, there is an important distance between them and the revelation of the Law.

The Hizkuni’s comment has an important lesson to teach us about the relationship between the people of Israel, rabbinic authority, and the Torah. We know from Devarim that, “Moses commanded us a law, an inheritance of the congregation of Yaakov” (33:4). The law was not given to its teachers, to the judges, but to the entirety of the people of Israel. Rabbinic authority is not inherent in the rabbis, but comes from their familiarity with the law; not from creating the law but from understanding it. Thus it is incumbent upon all of Israel, each and every one of us, to approach the Torah personally, not to depend upon rabbinic intermediaries. The Torah belongs to all of us, and we each have our own portion in it. It’s not enough to trust that someone knows the law, we have to understand and appreciate it ourselves.

[1] In this he combines Zevahim 115b with מכילתא בחדש פ״ד.


Parashat Devarim 5774 – The Oral Torah and The Things That Moshe Said

אֵלֶּה הַדְּבָרִים אֲשֶׁר דִּבֶּר מֹשֶׁה


Parashat Devarim opens the final book of Humash, marking a radical departure from the previous books. It’s uniqueness is encapsulated in the name by which it is referred to in Midrashim and the Gemara, “Mishneh Torah”, meaning “Repetition of the Torah”. This title is probably a reference to the many narratives and laws from previous books of the Torah that are repeated in Sefer Devarim. However, the narratives and laws[1] of Sefer Devarim also include many things not found in previous books, lack many things found in previous books, or outright contradict the laws and narratives of previous books. Parashat Devarim includes a few excellent examples of all of these, such as the appointment of judicial system (Devarim 1:9-18; originally found in Shemot 18) and the incident of the spies (Devarim 1:19-46; originally founding in Bamidbar 13-14). Perhaps the most striking changes from the previous books of the Torah to Sefer Devarim are in the writing style and the perspective of narration. The language and sentence structure used are strikingly different from the other books, to the point that switching from one to the other is actually difficult. Most of the books of the Torah are narrated from a third-person perspective (“And Moshe said…” “And Moshe struck the rock…”), but Sefer Devarim is dominated by first-person narration (“I said…” “We did…”). This final detail, as we shall see, actually contains the explanation for all of the other discrepancies of Sefer Devarim.

Sefer Devarim opens with the phrase, “These are the words which Moses spoke to all of Israel” (Devarim 1:1). Just a few verses later (1:6), Moshe begins a speech that spans for about 4 chapters of Sefer Devarim. Immediately thereafter, Moshe begins his second speech (5:1), which will span 22 chapters. This is followed immediately by the beginning of a third speech (27:1), filling chapters 27 and 28, and then chapters 29 and 30 are a fourth speech (beginning with 29:1).  The last four chapters of Sefer Devarim (31-34) are a narration of Moshe’s Last Acts and Farewells, much of which is still him speaking or singing, though not all of it. This breakdown demonstrates that Sefer Devarim is almost entirely a recording of Moshe’s speeches! 30 out of 34 chapters of Sefer Devarim, give or take a few verses, are entirely his speeches, and the other four chapters include a hefty amount of his speech as well. The sudden switch from third- to first-person narration is therefore obvious and understandable, as Moshe would not narrate from a third-person perspective. Fascinatingly, this also suggests that the style switch is also a matter of Moshe’s narration, meaning a switch from the previous, presumably Divine, perspective, to Moshe’s human perspective.

This raises an immediate issue in terms of our conception of the giving of the Torah. Rabbi Akiva says that the entirety of the Torah, in its general principles and its minor details, was given to Moshe on Har Sinai[2]. If this is true, then Sefer Devarim was given to Moshe on Har Sinai, from ‘א, and for it to be narrated by Moshe, phrased in his own perspective, would be strange at the very least. However, this is not the only opinion in Hazal. Rabbi Yishmael says that the general principles of the Torah were given on Har Sinai, and then the minor details were given in the Mishkan and in the Plains of Moav (where Moshe delivers the speeches found in Sefer Devarim)[3]. Even this does not quite say that Moshe himself said over, of his own volition, the speeches recorded in Sefer Devarim, but it is a step in that direction. The next step is taken by Abarbanel in his Introduction to his commentary on Sefer Devarim.

In truth, Moshe our teacher stated the words of this book and explained the mitzvot mentioned therein as he prepared to part from the people of Israel.  After he completed his words to Israel, God desired that they be included in the Torah as Moshe stated them.  Perhaps God added elements to those words at the time that they were committed to writing.  Thus, although the words may have been stated by Moshe, the authority to include them in the Torah’s text did not derive from him.  Moshe did not decide to commit these words to writing, for how could he compose even a single thing in God’s Torah without Divine sanction?  Rather, all of these words of the Book of Devarim were by the mouth of God, together with the rest of the Torah’s text, for God agreed with his formulations and favored the words of the ‘faithful shepherd’ Moshe.  Thus, God restated them to Moshe and ordered them to be written by him, and Moshe therefore composed them by God’s authority and not by his own

Thus the speeches of Sefer Devarim are actually Moshe’s own narration[4], which then received the Divine imprimatur when ‘א decided to make them part of the Torah[5]. The significance of this idea is powerfully expressed by Rav Tsadok HaKohen of Lublin[6].

The latter version of the Decalogue, that in Sefer Devarim, was said by Moshe, on his own account. Nonetheless, it is part of the Written Law. In addition to the mitzvot themselves that Moshe had already received at Sinai, by the word of God, these words as well [in Sefer Devarim], which were said on his own account, which are not prefaced with the statement, “And God said…”, these, too, are part of the Written Law. For all of his (i.e. Moshe’s) are also a complete “torah”, just like the dialogues of the patriarchs and other similar passages are considered part of the Written Law. But the material that begins “And these are the things” (i.e. the first verse of Sefer Devarim and the rest of the book that follows), material that was said on his own account, represents the root of the Oral Law, the things that the sages of Israel say of their own account.

Rav Tsadok is saying that as part of the ‘א’s Divinely commanded text, Sefer Devarim is part of the Written Torah, but as the words of Moshe Rabbenu, Sefer Devarim is the beginning of the Oral Torah. Therefore it is not strange that Sefer Devarim should depart from previous books of the Torah in retelling past events. As part of the Oral Torah, it is a completion and an interpretation of the Written Torah. It is Sefer Devarim’s nature as interpretive retelling that explains its divergences from previous recordings of laws and narratives in the Torah.

The first great example of that in Parashat Devarim is the Appointment of the Judges. This first occurs in Shemot 18, when Yitro arrives at Har Sinai and suggests the appointment of judges as a way to lighten Moshe’s burden. Yitro tells Moshe that he should take “able men, such as fear God, men of truth, hating unjust gain; and place such over them, to be rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens” (Shemot 18:21). Moshe does as Yitro recommended, and goes from being the sole judiciary authority to being the final authority when lower judiciary authorities were not enough. In Sefer Devarim, Moshe initiates the appointment of the leaders, due to his inability to lead the people.

And I spoke to you at that time, saying: “I am not able to bear you myself alone; the Lord your God has multiplied you, and, behold, you are this day as the stars of heaven in multitude. The Lord, the God of your fathers, made you a thousand times so many more as you are, and blessed you, as He has promised you! How can I myself alone bear your trouble, and your burden, and your strife? Get you, from each one of your tribes, wise men, and understanding, and full of knowledge, and I will make them heads over you.’ And you answered me, and said: ‘The thing which you have spoken is good for us to do.’ So I took the heads of your tribes, wise men, and full of knowledge, and made them heads over you, captains of thousands, and captains of hundreds, and captains of fifties, and captains of tens, and officers, tribe by tribe. And I charged your judges at that time, saying: ‘Hear the causes between your brethren, and judge righteously between a man and his brother, and the stranger that is with him. You shall not favor persons in judgment; you shall hear the small and the great alike; you shall not be afraid of the face of any man; for Justice is God’s; and the cause that is too hard for you you shall bring to me, and I will hear it.” And I commanded you at that time all the things which you should do. (Devarim 1:9-18)

There are many differences between this passage and the passage in Shemot. First off is the lack of any mention of Yitro is Sefer Devarim. More interesting, however, is the description of the judges, both in terms of their innate qualities and their assigned duties. Whereas in Shemot the men are described as “able men, such as fear God, men of truth, hating unjust gain,” in Devarim they are referred to as “wise men, and understanding, and full of knowledge.” Moshe appoints the men in Shemot as “rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens,” whereas in Devarim they are additionally appointed as “officers.” In Shemot Moshe chooses the men, whereas in Devarim the nation chooses them. These differences all flow from differences in the initial cause for the appointment in each passage. In Shemot the men are appointed to create a necessary Judicial structure, whereas in Devarim Moshe is appointing ‘heads” over the tribes, to help him lead a nation that has grown to large for his singular leadership. Therefore only Shemot mentions Yitro, while he isn’t part of the story in Devarim. The traits of the men chosen in Shemot are appropriate for judges, while the traits of the men chosen in Devarim are more generally useful for leadership. That’s why in devarim they are “officers” as well as judicial “rulers”. Shemot emphasizes the issues of jurisprudence, right before the giving of ‘א’s Law, where Devarim emphasizes matters of leadership. These two issues came up simultaneously, and we only get the full picture due to their being split apart textually.

The second such example that appears in Sefer Devarim is the Sin of the Spies. The first recording of this narrative occurs in Bamidbar 13-14, instigated by ‘א commanding Moshe to send men to scout out the land. The men bring back a misleading and evil report that causes Bnei Yisrael to rebel. Despite the protestations of the good spies, Yehoshua and Calev, Bnei Yisrael refuse to enter the land, leading to ‘א condemning the entire generation to die in the desert. The departures from this representation in Devarim are few, but significant.

And I said to you: “You have come to the hill-country of the Amorites, which the Lord our God gave to us. Behold, the Lord your God has set the land before you; go up, take possession, as the Lord, the God of thy fathers, has spoken to you; do not fear, nor be dismayed.” And you came near to me every one of you, and said: “Let us send men before us, that they may search the land for us, and bring us back word of the way by which we must go up, and the cities to which we shall come.” And the thing pleased me well; and I took twelve men of you, one man for every tribe; and they turned and went up into the mountains, and came to the valley of Eshcol, and spied it out. And they took of the fruit of the land in their hands, and brought it down to us, and brought us back word, and said: “Good is the land which the Lord our God gives to us.” Yet you would not go up, but rebelled against the commandment of the Lord your God; and you murmured in your tents, and said: “Because the Lord hated us, He has brought us forth out of the land of Egypt, to deliver us into the hand of the Amorites, to destroy us. To where are we going up? Our brothers have made our heart to melt, saying: The people is greater and taller than we; the cities are great and fortified up to heaven; and moreover we have seen the sons of the Anakim there.” Then I said to you: “Dread not, neither be afraid of them. The Lord your God who goes before you, He shall fight for you, according to all that He did for you in Egypt before your eyes; and in the wilderness, where you have seen how the Lord your God bore you, as a man bears his son, in all the way that you went, until you came to this place. Yet in this thing you do not believe the Lord your God, Who went before you in the way, to seek you out a place to pitch your tents in: in fire by night, to show you by what way you should go, and in the cloud by day.” And the Lord heard the voice of your words, and was angry, and swore, saying: ‘Surely there shall not one of these men, even this evil generation, see the good land, which I swore to give to your fathers… (Devarim 1:20-35)

Of the many differences here, a few stand out in particular. Where in Bamidbar 13, ‘א commanded the sending of the scouts, in Devarim the people asked to send spies. In Bamidbar the spies bring back a false report that incites the people, which is ineffectually countered by Calev and Yehoshua, while in Devarim the report of the scouts appears only in the words of the people after they have already rebelled. The people rebel of their own initiative and are rebuked not by Calev and Yehoshua but by Moshe himself. While here too there seems to have been two different things occurring simultaneously, two different missions performed by the same twelve men at the same time[7], depicted separately in two different places, this is not the reason for the differences here. Instead, here it seems to be simply a matter of a different perspective. By focusing on the initiatives and failures of Moshe and Bnei Yisrael, by excluding ‘א and the spies from the story, emphasis is placed on the actions and responsibility of the Nation and their Leader. Thus this retelling does not contradict or change the story, so much as it simply presents the narrative from a different point of view, emphasizing different things.

Sefer Devarim is a retelling of much of the laws and narratives of the Torah, but it is a complex retelling. It has additional information, intentional lacks of information, and apparent contradictions. However, far from posing a problem for the Torah’s integrity and for the religious reader, these complexities open up the Written Torah by anchoring it to our most precious gift, the Oral Torah. The Oral Torah is the god-given ability for the wise of Bnei Yisrael to interpret and apply the Written Torah, and it started with Moshe. Moshe took events and laws from the 40 years that Bnei Yisrael traveled in the wilderness and presented them in new ways, in order to convey the aspects he felt were most important for Bnei Yisrael to appreciate before entering the Land of Israel. Throughout the entirety of Sefer Devarim, many different aspects are emphasized, but a few themes, such as have been presented above, are dominant. The laws and events of Sefer Devarim highlight the ability, and corresponding responsibility, of Bnei Yisrael. Upon entering the land, everything will change for Bnei Yisrael. They will have to be responsible for themselves on a much greater level. They are losing Moshe, their faithful shepherd through the wilderness, and ‘א will begin to reduce His miracles and open Presence among them. The people can’t rely on Moshe or ‘א to take charge and save them. They will have to lead themselves, and they will have to take responsibility for their own mistakes. Correspondingly, the texts emphasize the ability of the people to do so. All of this is a function of Oral Torah. The Oral Torah allows for the expression of whatever aspects of the Torah are most relevant at any given time. “Since the destruction of the Bet HaMikdash, ‘א has no place in this world outside the 4 Amot of Halakhah.”[8] When the Bet HaMikdash was destroyed, the Oral Torah took us from the community-centered worship of the Bet HaMikdash to the individual-centered life of Halakhah. And when Bnei Yisrael were preparing to enter the Land of Israel, Moshe spoke to them the speeches of Sefer Devarim, that would take them from a people entirely dependent on ‘א to a people able to create a godly society, according to His laws, in His land.

[1] This composition will not discuss legal contradictions with previous books, as that is a separate topic. In brief, halakhic midrashim have their own method of solving it in relation to determining halakhah, and in terms of understanding the internal contradiction of the Torah text, it revolves around the institution of common law. For more on that and the specific case of Sefer Devarim, see essays 5-8 by Prof. Joshua Berman of Bar Ilan University, here.

[2] Talmud Bavli, Masekhet Zevahim, 115b.

[3] Ibid.

[4] While some struggle with the idea of a human hand in the composition of the Torah, it is important to remember the level of Moshe in his prophecy, to the point where the midrash describes his as half man and half elohim (Devarim Rabbah 11:4).

[5] This is actually suggested by the gemara: One does not pause [to call up another reader] in [the reading of] the curses, but one person reads them all.  Abaye said: This applies only to the curses in Torat Kohanim [Vayikra], but in Mishnah Torah [Devarim], one may pause.  Why is this so? The former are in plural form and Moshe spoke them in the name of Hashem, and the latter are in singular and Moshe spoke them on his own. (Talmud Bavli, Masekhet Megilla, 31b).

[6] Pri Tzadik, Kedushat ha-Shabbat, article 7. Translation from Professor Joshua Berman, here.

[7] One of the missions was about military intelligence, while the other was more about surveying the land. The first indicator of this is the different verbs used for what the “spies” will do in each case, “לרגל,” “to spy,” or “לתור,” “to scout”. For more on this see Rav Elchanan Samet’s excellent essay, here.

[8] תלמוד בבלי מסכת ברכות דף ח עמוד א