Politics and the Administration of Justice

Politics and the Administration of Justice: Yitro: Exodus 18:1 – 20:23

by

Howard Adelman

My commentary is restricted to Chapter 18.

The Israelites, or, at least Moses, had been taught the basics of diplomacy and how to deal with an irrational and vengeful tyrant. The Israelites were then taught some core lessons in the art of war. Diplomacy and military skills may be necessary for a people to be secure. But the key will be politics, the ability of a people to govern themselves.

“But I thought that the Israelites were governed by God!” That is a misconception. Parshat Yitro illustrates that this conception is erroneous. The Israelites had fought and won a glorious and impossible victory. Last shabat was shabat shira, the shabat of song and rejoicing when Miriam with song and timbrel against the backdrop of the sea led the Israelites and danced and sang the night away. The God of tradition, the God of Abraham, Isaac and Jacob, the god of diplomacy and wrath who subsequently revealed Himself as a warrior God, a God of war, has now made room for pleasure and joy, for happiness and delight. God talks but He does not sing. It is we who sing in praise of God – and other things. Does God now reveal Himself to His people, to all his people, as a god who can teach the people the arts of government and not just the arts of war?

Water was scarce. The principles of change had been transformed into the principles of security and resistance against change. Food too had been scarce. Neither the earth nor the heavens opened up to feed the people. Their souls were starving even more than their bodies. Little did they know that the exhilaration of victory would be followed by the long and dark tunnel of struggle, of resentment. Appreciation for what they had and for what they had accomplished had been replaced by resentment and self-pity. The water they drank had become bitter.

The water is made sweet. The heavens and the earth yield, if not their bounty, sufficient amounts to survive. And the military tradition becomes professionalized as Joshua defeats Amalek, with Aaron and Hur each holding one arm of Moses on the hill overseeing the battle.

Against this backdrop, Jethro (Yitro), Moses’ father-in-law, appears on the scene to reunite Moses with his wife, Zipporah, and his two sons, Gershom (stranger in a foreign land) and Eliezer (God is my help). Moses will have to introduce his people to a land that will not be foreign, but will be their own land. Moses will also have to help his people learn self-reliance and not be so dependent on God’s help and assistance. But Moses, himself, in keeping his family safe while everyone else risked their own families, demonstrated that he was not fully of the people. The other Israelites had their families, their wives and children with them. Further, Moses himself was still far too reliant on God.

Why were Zipporah, Gershom and Eliezer left in the safety of the home of Jethro while Moses took on the Egyptians in an epic diplomatic and military battle? The question is not only not answered, it is not even asked. Instead, Moses updated his father-in-law, not an Israelite but a Midianite priest. The next day, Jethro watched Moses serve as the magistrate of his people resolving disputes among them.

The scene reminded me of one when I was first introduced to Arafat. We were in Gaza. It was about 10:00 p.m. in the evening. We were ushered into a large room with chairs all around the perimeter of the room. There were perhaps 16-18 people occupying those chairs. Recall, it was 10:00 p.m. in the evening. We were escorted past those waiting supplicants into a smaller reception area where four others were waiting. We did not sit but stood. Soon, two individuals emerged from another adjacent room. One brushed past us and the other invited us to follow him in.

Arafat came out from behind his desk, grasped each of our hands with both of his and greeted us warmly. We were individually introduced, all four of us, and Arafat nodded at the introduction. There was no translation into Arabic and it was not clear to me whether Arafat followed the introductions. Pleasantries were exchanged and then we were invited by our escort to follow him out of the room, but not before there was some more grasping of hands and smiling nods.

When we left and were once again outside, I asked the leader of our group, a very experienced diplomat, what that was all about. He said it was a courtesy introduction before we could continue our discussions in Gaza. My question, however, was not about the perfunctory introduction, since it was clear that it had just been a formality. I wanted to know what Arafat was doing seeing people in the late evening with twenty or so waiting to talk to him.

I was told that this is what Arafat did and often until three in the morning. He saw Palestinians who wanted a favour, a disposition, an intervention in a domestic or business dispute, or on any other matter under the sun. It might be a request to adjudicate a dispute with a next door neighbour over a fence line. Arafat had never been educated by Jethro. He lacked a father-in-law to serve as a mentor. Arafat was performing as Moses did before Jethro arrived on the scene in Sinai.

13. It came about on the next day that Moses sat down to judge the people, and the people stood before Moses from the morning until the evening.

יגוַֽיְהִי֙ מִמָּ֣חֳרָ֔ת וַיֵּ֥שֶׁב משֶׁ֖ה לִשְׁפֹּ֣ט אֶת־הָעָ֑ם וַיַּֽעֲמֹ֤ד הָעָם֙ עַל־משֶׁ֔ה מִן־הַבֹּ֖קֶר עַד־הָעָֽרֶ

Unlike the Palestinians in Gaza waiting to see Arafat who had seats, the Israelites waiting to see Moses had to stand for hours.

14. When Moses’ father in law saw what he was doing to the people, he said, “What is this thing that you are doing to the people? Why do you sit by yourself, while all the people stand before you from morning till evening?”

ידוַיַּרְא֙ חֹתֵ֣ן משֶׁ֔ה אֵ֛ת כָּל־אֲשֶׁר־ה֥וּא עֹשֶׂ֖ה לָעָ֑ם וַיֹּ֗אמֶר מָֽה־הַדָּבָ֤ר הַזֶּה֙ אֲשֶׁ֨ר אַתָּ֤ה עֹשֶׂה֙ לָעָ֔ם מַדּ֗וּעַ אַתָּ֤ה יוֹשֵׁב֙ לְבַדֶּ֔ךָ וְכָל־הָעָ֛ם נִצָּ֥ב עָלֶ֖יךָ מִן־בֹּ֥קֶר עַד־עָֽרֶב:

Jethro remonstrated Moses. Moses had made the Israelites stand for a long time and did not respect the dignity he owed each of his people. He was akin to the physician who has all his patients come early and accumulate lest the doctor lose time waiting. For hours, the Israelites stood while he, Moses, sat. Secondly, Moses handled all the adjudication personally. Moses replied to Jethro in a defensive way. “I did not ask them to come. They sought me out. Secondly, they came to see me not just to seek a resolution of a relatively petty problem, but to seek God’s ruling on such matters. They come to seek God. In other words, as God’s stand-in, I, Moses, am only a conduit for God’s word.” We are presented with a case of government which is neither responsible nor responsive, neither representative nor respectful,

15Moses said to his father in law, “For the people come to me to seek God.

טווַיֹּ֥אמֶר משֶׁ֖ה לְחֹֽתְנ֑וֹ כִּֽי־יָבֹ֥א אֵלַ֛י הָעָ֖ם לִדְר֥שׁ אֱלֹהִֽים:

As far as Jethro was concerned, that was no answer at all. For at least two consequentialist reasons. The process would wear out Moses and would also make the people weary – all that waiting, and in terrible circumstances just at a time when they needed relief, not a further weighty burden.

17. Moses’ father in law said to him, “The thing you are doing is not good.		יזוַיֹּ֛אמֶר חֹתֵ֥ן משֶׁ֖ה אֵלָ֑יו לֹא־טוֹב֙ הַדָּבָ֔ר אֲשֶׁ֥ר אַתָּ֖ה עֹשֶֽׂה:
18. You will surely wear yourself out both you and these people who are with you for the matter is too heavy for you; you cannot do it alone.		יחנָבֹ֣ל תִּבֹּ֔ל גַּם־אַתָּ֕ה גַּם־הָעָ֥ם הַזֶּ֖ה אֲשֶׁ֣ר עִמָּ֑ךְ כִּֽי־כָבֵ֤ד מִמְּךָ֙ הַדָּבָ֔ר לֹֽא־תוּכַ֥ל עֲשׂ֖הוּ לְבַדֶּֽךָ:
19. Now listen to me. I will advise you, and may the Lord be with you. [You] represent the people before God, and you shall bring the matters to God.		יטעַתָּ֞ה שְׁמַ֤ע בְּקֹלִי֙ אִיעָ֣צְךָ֔ וִיהִ֥י אֱלֹהִ֖ים עִמָּ֑ךְ הֱיֵ֧ה אַתָּ֣ה לָעָ֗ם מ֚וּל הָֽאֱלֹהִ֔ים וְהֵֽבֵאתָ֥ אַתָּ֛ה אֶת־הַדְּבָרִ֖ים אֶל־הָֽאֱלֹהִֽים:
20. And you shall admonish them concerning the statutes and the teachings, and you shall make known to them the way they shall go and the deed[s] they shall do.		כוְהִזְהַרְתָּ֣ה אֶתְהֶ֔ם אֶת־הַֽחֻקִּ֖ים וְאֶת־הַתּוֹרֹ֑ת וְהֽוֹדַעְתָּ֣ לָהֶ֗ם אֶת־הַדֶּ֨רֶךְ֙ יֵ֣לְכוּ בָ֔הּ וְאֶת־הַמַּֽעֲשֶׂ֖ה אֲשֶׁ֥ר יַֽעֲשֽׂוּן:
21. But you shall choose out of the entire nation men of substance, God fearers, men of truth, who hate monetary gain, and you shall appoint over them [Israel] leaders over thousands, leaders over hundreds, leaders over fifties, and leaders over tens.		כאוְאַתָּ֣ה תֶֽחֱזֶ֣ה מִכָּל־הָ֠עָ֠ם אַנְשֵׁי־חַ֜יִל יִרְאֵ֧י אֱלֹהִ֛ים אַנְשֵׁ֥י אֱמֶ֖ת שׂ֣נְאֵי בָ֑צַע וְשַׂמְתָּ֣ עֲלֵהֶ֗ם שָׂרֵ֤י אֲלָפִים֙ שָׂרֵ֣י מֵא֔וֹת שָׂרֵ֥י חֲמִשִּׁ֖ים וְשָׂרֵ֥י עֲשָׂרֹֽת

Simply put – delegate. Give the lesser matters to others and only involve yourself in the very major disputes. Note, there is no separation of powers between executive and judicial functions. The judiciary are still named and appointed by Moses and are only permitted to rule on relatively minor matters. Further, they also serve as political leaders to apply the laws handed down from Moses.

But they are chosen based on their rectitude, their unconcern with using their positions to advance their monetary interests for they are already men of substance, men of chayil (חַ֜֜יִל) in the material sense and in a sense that they carry with them gravitas. For chayil refers not only to wealth, but to strength of character, a man of moral worth, hence, a man of substance. They are serious men. They must also be both honest and God-fearing in order to carry out their responsibilities. It is as if they put their property in a blind trust. After all, the Talmud, as Rashi cites it, says, “Any judge from whom money is exacted through litigation is not [fit to be] a judge.” [based on Mechilta and B.B. 58b] They must use their positions only to judge honestly and impartially.

This is not a lesson in self-government. It is still a top-down system. There is still no differentiation between the executive branch, the judicial branch and the legislative arms of government. God legislates. Moses serves as the magistrate and organizes the implementation of both the legislative and judicial functions.

The second lesson offers the criteria for choosing leaders who are also judicial officers. They must be men of wealth. They must be honest men whose gains are not ill-gotten. They must be trustworthy that they will implement what they decide. They must also be God-fearing.

There is a third lesson hidden among all the other recommendations. It is a statement in verse 19. “You represent the people before God.” Moses has his position, not as the undisputed leader of or over the Israelites, but as the representative of the Israelites before God. His primary job is not top-down, even though he performs that function; it is bottom-up – to represent the people. Thus, we get the first glimmerings of democracy as well as the first steps towards efficient government and the requirement that the men who make up that government be chosen on the basis of a very lofty set of values.

Note the following. The values are eternal and unchanging and are delivered from on high, from above. The lesson about efficiency comes from the side, from a foreigner. Though he came to respect the power of the Israeli god, there is nothing said about his conversion as Rashi implied. The Israelites had to remain open to others, non-Israelite lights.

If authority in values come from above, ideas on how to organize the system of authority came from the outside and by means of a non-Israelite agent. The Israelis had to remain open to outside influences. Third, interests flowed from below and Moses’ prime job was to represent the people as a whole to God. Not special interests. But everyone’s interests. The nation’s interest.

We now have the basic skeleton for a polity.

With the help of Alex Zisman

Coercion and Justice: Shelach Lecha Numbers 13-15

Jul3

Coercion and Justice: Shelach Lechah Numbers 13:1 – 15:71

Howard Adelman

I left Canada just after Shavuot when we stayed up all night to study Torah and I personally gave a talk on the treatment of strangers and the treatment of refugees. As I write this morning’s blog in an apartment in Tel Aviv and before my last day in Israel on this trip, the city is winding up its all-night celebrations of White Night (Laila Lavan), the celebration of the city’s secular culture that began when UNESCO designated Tel Aviv in 2003 as a World Heritage Site. The celebration now consists of a myriad of cultural activities from poetry readings to concerts, outdoor dance parties to indoor lectures that only ends with the dawning of a new day. There is no symbol that is as significant of the gap between Tel Aviv and Jerusalem, between the vitality of secular culture and the seriousness of Israel’s religious culture, between West and East that so divides modern Israel.

There are different ways to worship and different objects of worship, experimental poetry versus retelling and reinterpreting ancient narratives, playing and dancing to music or studying and dissecting ancient texts, and, as I would suggest from reading this week’s Torah portion, between the advantages and disadvantages of dealing with matters “straight up” as it were and tackling them through indirection. Next week we read and study Korach, Numbers chapter 16:1 to 18:32 and the account of the famous rebellion against the rule of Moses. The groundwork for that rebellion is set in this week’s portion, Numbers 13:1 to 15:41. Shelach Lechah, שְׁלַח-לְךָ, the sixth and seventh words in the portion.

The words mean to send, shelach, and to or for yourself, lechah. The latter is best known in synagogue services from the song, Lechah Dodi, the liturgical song recited Friday at sundown to welcome Shabbat prior to the evening or Maariv service. In secular celebrations, we celebrate the coming out and up of the sun, as in White Night in Tel Aviv. In religious celebrations at the beginning of shabat, we sing to the moon and invite the divine to come forth: “Come out my beloved, my bride to meet the inner light.” So the princes of the Israelite tribes are being sent out to reveal themselves as much as to scout out the land. Shelach Lechah begins with openness, with directness. The scouts are sent out, however, in order for the inner to come forth.

The portion is about the inadequacy of directness. We deal with the outer to bring forth the inner. Purportedly a story about Moses sending spies to the land that the Israelites are about to conquer, it is really about scouting out rather than spying on the land. There is no apparent secrecy involved, yet much is revealed about the Israelites that was hidden, so much so that what comes forth dooms the Israelites to wander in the wilderness for forty more years until “their carcasses” drop. (14:29) What emerges is not so much about the land that lay before them as about themselves. At the same time, Joshua is allowed to emerge as a national military leader in the same way Moses was taught to recognize himself as a political leader, removing the sandals from his feet so he too will realize that the land on which he stands is holy. To recognize this, each must take off his “dancing shoes,” must leave the secular (and the profane) behind at the entrance to the holy land.

Why must one come forth into the holy land with bare feet? When a finance minister in Canada introduces his budget, he dons a pair of new shoes. That is how we govern the realm of everyday life. But the land the Israelites are about to conquer is not an ordinary land. It is supposedly a holy land and only holy ones in bare feet are destined to exercise power in that land. “Put your feet [not your boots] upon the necks of these kings.” (Joshua 10:24) It is insufficient to have boots on the ground to win a true victory. One must enter the holy of holies unshod with your soul revealed as much as your soles are. For in the world of holiness, one may need military power to acquire civilian power, but one does not rule with coercive power but through the power and authority of the law and the rule of justice and, even more importantly, by baring your soul as much as ruling over the body politic.

I used to be very puzzled by this section. Here were the Israelites entering a land with an army of over 600,000. The Gauls could sack Rome with only 40,000 and destroy the Roman Empire. The army of the Mongol hordes under Genghis Khan numbered no more than 150,000. The Israelites had an army four times that size to conquer a miniscule portion of the surface of the earth. They sent out scouts (laturim) to literally “scout” out the land. They were not spies and were not called neraglim. The twelve princes were clearly not spies in any normal sense of the word. They were scouts. To conquer Jericho, Joshua would later send two true spies, not a dozen royal scouts and emissaries. True, the scouts needed to survey a much larger territory rather than just one walled city, but they were just scouts, not spies as we understand the term.

Joshua’s spies were very different than the scouts sent by Moses. The latter were public and royal figures, not nameless intelligence officers. They were sent to bring back reports for a popular referendum on future action not to prepare the army of the Israelites for invasion and conquest. Should we go was the question, not how we should go about it. So Moses’ scouts reported back to the whole community at Kadesh, not just the military commander. These scouts met the Canaanite leaders and traded with them to return with the icon of Israeli tourism, a bunch of grapes hanging from a pole and borne by two carriers to bring back the message that this was a land of “milk and honey.” In Joshua’s mission, the two agents of Joshua’s equivalent of the CIA, were truly secret spies, interested only in intelligence, not the prospect of spoils. Further, there is no evidence of the twelve scouts traveling surreptitiously.

The twelve scouts were sent out to ascertain the strength of the enemy and the bounty to be acquired by immigrating into the land. Were the inhabitants few or many, welcoming or hostile, strong or weak? Were the towns and cities fortified? This was macro information available through public means and useless in devising a military plan of conquest. In fact, sending forth the scouts undermined any resort to military means for it removed the first rule of warfare, surprise as a result of secrecy. There is a huge difference between sending notables on a public mission of inquiry and sending spies to help design the strategy and tactics for conquest. The latter do not need to bring back the abundance of the fruit in the land. The scouts are on a mission of migration and settlement, not a military assignment. When the Israelites do opt for the latter, they approach from the east crossing the Jordan not along the Mediterranean coast to enter via the lands controlled by the Philistines or via the Judean Hills to encounter the Canaanites. They go the round way in and enter through Jordan to attack Jericho.

Clearly, when the scouts return they reveal that, although the Israelites had a huge army, they were not ready for battle. The leadership, with the exception of Caleb and Joshua, may have exaggerated the strength and hostility of the local population, but they were undoubtedly accurate in reporting back that the Israelites would not be able to migrate and insert themselves among the local population peacefully. They would have to spend forty years in the wilderness preparing themselves for battle and leaving behind the peaceniks who initially believed that entry could be obtained by immigration alone. They would have to enter through the back door as it were, through the exercise of coercion and based on intelligence and not just as a result of a public scouting mission, through Samaria rather than Judea.

So the modern Jewish state is called Israel and not Judea. The right wing revisionists recognized all along the hostility of the inhabitants and their resistance to large scale migration. The hawks, including Ben Gurion, recognized the necessity of using force to conquer the land, unlike peaceniks and the promoters of immigration primarily as the means of settling in Palestine. In contemporary Jewish ideological divisions, the positions have shifted. It is the hawks who are obvious in their goals. For the right, the political “conquest” of all of Jerusalem and Hebron remains an unfinished task. These hawks are not very secretive with respect to their aim of conquering all of what was for years referred to as Palestine.
That which comes indirectly results more from the failures of others than from one’s own arrogant and obvious actions. If we read today’s portion to grasp this as the lesson, we miss another main point. For the portion does not end with chapter 14 but with chapter 15. Chapter 15 is very different than chapter 13 and 14. Chapter 13 begins with the instruction to Moses to send forth the scouts and emissaries to survey the land of Canaan, but to do so to reveal themselves for themselves and to themselves. They could be revealed to others and even named because they were not literally spies. In the survey mission they would ascertain what the resources were and the strength of the local inhabitants.

What was their report after spending 40 days on their mission? It included no information on troop strength, locations and armaments, about the thickness of the walls around cities and other fortifications, only the fact already known that there were no parts of the territory free of people already living there. Those people, the local inhabitants, were fierce and determined to hold onto what they possessed. There were many tribes and enemies in the different parts of the territory, Ammonites and Hittites, Jebusites and Canaanites. Ten of the twelve princes reported back to Moses that the locals combined were stronger than the Israelites.

Those ten also possibly lied. The land was so tough that it devoured the people who lived on it. In any case, they said that it was inhabited by giants, and perhaps they were for undernourished populations are generally shorter in stature. In contrast and in comparison, the ten emissaries saw themselves as grasshoppers, inyenzi in Kinyarwanda, locusts to be those they threatened to swarm and who would strive to exterminate them in turn. What did the popular will express? Dismay and disillusion. The equivalent of a united Europe was not the promise they were led to believe it was. A populist revolt took place. Both Moses and Aaron bowed down before the will of the people. But Caleb and Joshua indicated that the hopes of and promises to the Israelites were now dead. Further, the people had lost their faith.
God remonstrated them and promised to decimate them for the absence of leadership and for the leaders and the population in general surrendering to their fears. “I will smite them with the pestilence, and destroy them, and will make of thee a nation greater and mightier than they.” Ten of the tribes would undergo the fate of Egypt, God threatened. Only the tribes of Caleb and Joshua would thrive to become a nation greater than that of Israel.

Moses shifted position and once again stood up for loyalty to God rather than prostrating himself before the populist will. The bulk of the population, however, was led by fears even greater than the fear of their God that they had humiliated and brought shame upon. Moses once again prostrated himself before God and asked Him to forgive His people. So God did not smite them. He allowed the Amalekites and Canaanites to do the job.

At the same time, chapter 15 offered instructions on how the Israelites were to prepare for victory and how they were to perform once they had succeeded in conquest. The usual instructions on rituals of thanksgiving were presented in some detail. The key political instruction begins in verse 14. You shall not do to the inhabitants what they were prepared to do to you.
“And if a stranger sojourn with you, or whosoever may be among you, throughout your generations, and will offer an offering made by fire, of a sweet savour unto the LORD; as ye do, so he shall do.” They shall do as you do and conform to the same law.

Strangers who abide by the customs of the land shall be welcomed and treated as equals for “there shall be one statute both for you, and for the stranger that sojourneth with you.” Verse 16 repeats: “One law and one ordinance shall be both for you, and for the stranger that sojourneth with you.” If either party disobeys the law in error, they shall be forgiven. But if that disobedience arises out of arrogance, by either the Israelite or the stranger who lives among you, those who committed the offence must be ostracized.

However, in verse 32, an allegory is told of a man who picks up sticks on shabat while the Israelites are still in the wilderness. Is that man an Israelite or a sojourner among them? Not likely the latter, for they are still in the wilderness and have not yet conquered the land. Further, as an Israelite, he is to be subjected to the most extreme punishment, stoning to death, and for what appears as a relatively trivial offence. In the light of the generosity to be offered to the stranger who respects your law, why is picking up sticks on shabat deserving of stoning?

It is not as if this stand commandment does not stand out. It is repeated again and again. Don’t light fires on shabat. (Exodus 35:3) Don’t cook on shabat. It is a day of solemn rest, that is rest from the labour of membership in the mundane world. (Exodus 16:22-26) You were not even to travel on shabat. (Exodus 16:29-30) Shabat was definitely not to be used as a White Night. The violation of shabat was a capital offence, for it was a violation of the covenant between the Israelites and their God.

What is common to the populism that backs off out of fear from moving en masse into a hostile land and the actions of the man who picks up sticks on shabat? They are situations in which people are both deliberate and defiant in their non-observance. The peaceniks fail to examine themselves as they move towards migration into the promised land. Those preparing to move in through the use of force must prepare for nation-building in advance and treat every local as a stranger in their midst with respect to protection by the law and punishment for its breaches. Strength must be married to the rule of law. But some breaches of the law by a member of the tribe which offends the centrality of the covenant between God and His people are subject to a death sentence by stoning.

Strength must be balanced with justice and realism has to offset our idealism. In any case, populism, surrendering to the whims of the people, the fears of the future and of strangers, may be the greatest danger. The dichotomy of being direct and open must be balanced with secrecy and the use of real spies. Direct talk and indirection are both requirements in politics. Importantly, the missions of plenipotentiaries must go forth, whether it be UNSCOP or inquiries into abuses of rights and of the laws of war, more to reveal our own inadequacies and short-sightedness than just record what is publicly observed. For over against Socrates, knowing thyself requires knowing the other and is accomplished by becoming acquainted with the other. Finally, living in the daylight of the everyday world and welcoming in the bride to meet the inner light of shabat are required to make a 24-hour day.