As has been noted by many commentators, the Book of Deuteronomy, Devarim, constitutes a retelling or, perhaps more precisely, a "second telling" of many of the events and much of the teaching encompassed in the forty years of the ancient Israelites' Exodus experience. That "second telling" takes the form of Moses' valedictory address, a summative reflection and exhortation to those who will be allowed to proceed to the Promised Land.
The book begins with various geographical references (Deuteronomy 1:1-8), followed by Moses' reminding everyone of his method of delegating authority and responsibility and his system of community organizing (Deuteronomy 1: 9-15), originally urged upon him by his father-in-law, Jethro (Exodus 18:13-27). Of special interest is the fact that the very first substantive (as opposed to introductory or procedural) matter addressed by Moses concerns fundamental principles of justice: "I further charged your magistrates as follows, 'Hear out your fellow men, and decide justly between any man and a fellow Israelite or a stranger. You shall not be partial in judgment: Hear out low and high alike. Fear no man, for judgment is God's. And any matter that is too difficult for you, you shall bring to me and I will hear it.'" (Deuteronomy 1:16-17)
Even more to the point is the sense of urgency in Moses' directive to the magistrates concerning instances when they will be called upon to resolve conflicts and disputes. The text says shamo'a, not just "hear," as rendered in the first Jewish Publication Society translation and most standard Christian translations, but "hear out," as in the more recent JPS version (see The Torah: A Modern Commentary, p. 1,318) as in "heed" or, in old English, "hearken to." The disputants, whether two Jews or a Jew and a Gentile, were to be accorded a full, impartial, and just "hearing."
The fundamental concept of impartiality appears repeatedly and emphatically in the Torah (see Exodus 23:2-3, 6; Leviticus 19:15; Deuteronomy 16:19) and the Talmud expands upon it constantly (e.g., see Pirkei Avot 1:8-9). But here, at the outset of the Torah's final book, referring to words spoken and respoken, Moses dwells on the hearing of words, on the fundamental right of an aggrieved party to be fully heard and heeded.
This point is underscored by the way Job expresses his absolute frustration and indignation at the injustice of his plight (contrary to the usual cliché, Job was anything but "patient") when he reaches the conclusion of his last speech (as contrasted with the first substantive comment of Moses' valedictory):
O that I had someone to give me a hearing;
O that Shaddai would reply to my writ,
Or my accuser draw up a true bill! (Job 31:35)
Even while acknowledging the futility of pressing his case when the would-be defendant is God, still-ever mindful of the essential nature of justice-Job plaintively wails that if only there were a magistrate with the authority to try such a case, to hold court, to conduct a hearing, he would be vindicated.
Mental health professionals counsel us to avoid obsession and preoccupation in our daily routines-not a bad suggestion as a general guide for leading our lives. Obsessing over justice, however, ought to be prized as an "exception to the rule"-an obsession that is firmly grounded in Torah.
When I became a parent, I never imagined that within five short years I would also become a judge. But now here I sit, with a five-year-old son and a three-and-a-half year-old daughter, arbitrating matters ranging in importance from the serious to the most mundane. My children are already wonderful lawyers. But I make a lousy judge. First of all, I know the parties too well-their personalities, their predilections, their strengths, and their weaknesses. In addition, I have to live with the consequences of my decision, so chances are that the last fruit roll-up is going to be split regardless of who really deserves it. When my children complain about the injustice of my solution, I am often tempted to quote Scar, the evil uncle in The Lion King, and simply say, "Life's not fair."
The verses that Rabbi Thal discusses describe an ideal standard for adjudicating disputes (Deuteronomy 1:16-17). The legal structure, suggested originally by Jethro in Exodus 18:13-27, consists of an egalitarian system with Moses as the presumably infallible and consummately impartial arbiter in cases too difficult for the average judge to decide. But here in Deuteronomy 1:16-17, these words are spoken as the Israelites are about to begin life in the real world, on the other side of the Jordan, without Moses to whom the judges could defer regarding the most difficult cases. The Israelites stand on the brink of fulfillment of the divine blessings bestowed by God upon Abraham-to be a great and numerous nation about to possess their Promised Land. Moses knows that the land is not a place in which they will live uncomplicated or easy lives. Rather, the blessing of living in this land will bring with it certain demands and responsibilities, including the challenge of living without the benefit of Moses' divinely inspired leadership.
Moses does not address this challenge directly. He is unable to confront his own mortality in such a stark and pragmatic way. Yet the context in which Moses speaks these words (1:16-17) reminds us that our obligation to pursue justice does not end when perfect judgment eludes or frustrates us. Even the most scrupulous judge cannot always render completely objective decisions. When I'm in a patient and rational mood, I tell my kids they have to share because I want them to learn to understand each other's needs. And verse 16 suggests that fair judgment is not to be found in some ideal objective standard but rather in the very real ways in which individuals relate to one another. Ushefatem tzedek bein ish uvein achiv uvein gero literally means "You shall judge righteousness between a person and between his brother and between a stranger." In Pirkei Avot we are taught that the world stands on three things: on Judgment, on Truth, and on Peace. (Avot 1:2) In a world without Moses, if we are to truly live in community, sometimes objective judgment can be swayed in the interest of truth and peace.
Questions for Discussion
- The Hebrew word taguru in Deuteronomy 1:17 is translated in The Torah: A Modern Commentary (New York: UAHC Press) as "fear." An alternative translation is, "to be in awe of." How does the meaning of the verse change in light of these two translations?
- Is hearing out the parties in a case enough? Or does the Torah presume that hearing also entails understanding?
- Who do you think should be the ultimate arbiter of issues involving justice in our society today? What values should influence the judicial decisions that are made?
- How might the Jewish concepts of justice, mishpat, and righteousness, tzedek, affect today's affirmative action debate?
D'varim, Deuteronomy 1:1–3:22
The Torah: A Modern Commentary, pp. 1,312–1,333; Revised Edition, pp. 1,161–1,173;
The Torah: A Women's Commentary, pp. 1,037–1,062