17.3. Appointing Judicial Officers for the Nation (18:13-27)
(13) Next day, Moses sat as magistrate among the people, while the people stood about Moses from morning until evening.
(14) But when Moses’ father-in-law saw how much he had to do for the people, he said, “What is this thing that you are doing to the people? Why do you act alone, while all the people stand about you from morning until evening?”
(15) Moses replied to his father-in-law, “It is because the people come to me to inquire of God.
(16) When they have a dispute, it comes before me, and I decide between one person and another, and I make known the laws and teachings of God.”
(17) But Moses’ father-in-law said to him, “The thing you are doing is not right;
(18) you will surely wear yourself out, and these people as well. For the task is too heavy for you; you cannot do it alone.
(19) Now listen to me. I will give you counsel, and God be with you! You represent the people before God: you bring the disputes before God,
(20) and enjoin upon them the laws and the teachings, and make known to them the way they are to go and the practices they are to follow.
(21) You shall also seek out from among all the people capable men who fear God, trustworthy men who spurn ill-gotten gain. Set these over them as chiefs of thousands, hundreds, fifties, and tens, and
(22) let them judge the people at all times. Have them bring every major dispute to you, but let them decide every minor dispute 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 they would bring to Moses, and all the minor matters they would decide themselves.
(27) Then Moses bade his father-in-law farewell, and he went his way to his own land.
(13) Next day: There are varying opinions as to which particular day is meant. According to one of those, it is the day after Jethro’s arrival, which means that this incident of the creation of the judicial system occurred before the giving of the Torah.
But by another reading, this was the day after Moses came down from the mountain with the second tablets (see 34:1,29). Moses could not have been adjudicating cases for the people unless the laws of the Torah had already been given. According to this view, the order of these events as reported in the Torah is different from the order in which they actually occurred.
There is a well-known principle in Jewish tradition that “there is no earlier and later in the Torah.” That is, the sequence of the chapters in the Torah is not always chronologically determined. The Torah may disregard chronological order by reporting particular episodes in a different sequence from how they actually occurred, in order to ensure the integrity and consistency of the story or of the discussion of a particular topic.
Given that premise, we should see this chapter as designed to include everything that is important for understanding the interactions with Jethro. And we can thus conclude that, in essence (even if chronologically it was perhaps not so), Moses judges the people before the giving of the Torah, and Jethro also returns home before the giving of the Torah. We must understand the ideas of the Torah according to the logic of the narrative itself, regardless of chronology.
Moses judges the people even before the giving of the Torah, because the advancement of the people in matters of justice must precede the attainment of any level of holiness. One of the most important institutions of social justice is a correctly functioning judicial system (according to Jewish tradition, establishing such a system is one of the “Seven Noahide Commandments” that are obligatory not only for Jews, but for all of humanity).
The first order of business is to normalize human relations by achieving justice and honesty among all people in their daily affairs. Only after achieving those goals will it be possible for them to further advance toward holiness through a direct dialogue with God, which is the primary objective of the giving of the Torah.
The principle that justice must come first, and only then can there be holiness, finds expression in many places in the Torah. We first encountered it, most notably, in the story of Abraham, and here it applied to the Jewish people as a whole.
Moses sat as magistrate among the people, while the people stood about Moses from morning until evening: Having been raised in Pharaoh’s palace, Moses of course understands that a judicial system must be hierarchical. It is generally obvious that one individual cannot judge an entire nation, and must therefore have assistants who can address the more straightforward issues. Nonetheless, Moses initially gives each complainant the opportunity to turn to him directly.
(15-16) Moses replied to his father-in-law, “It is because the people come to me to inquire of God. When they have a dispute, it comes before me, and I decide between one person and another, and I make known the laws and teachings of God”: Moses does not say, “I make known who is right and who is wrong” or “I make known who is guilty and who is innocent.” Rather, he says, “and I make known the laws and teachings of God.” Moses wants to teach the people the ways of God as they apply to scrutinizing and resolving the real disputes and conflicts that occur in their own daily lives.
Moses tries to give each person the opportunity to request Divine teachings directly. The goal of his court is not to offer instantaneous solutions to specific legal problems, but to teach the people to welcome God as an active participant in their lives. Ideally, the Jewish judiciary should always be guided by this approach exclusively. But in actual practice it is virtually impossible to implement.
People are able understand and assimilate Divine principles and instructions much more effectively in the context of actual legal proceedings that involve them directly, as opposed to mere abstractions that have little bearing on their day-to-day lives. Moses wants to educate the people in the ways of the Almighty, rather than simply adjudicating their mundane quarrels and disputes.
(17) But Moses’ father-in-law said to him, “The thing you are doing is not right”: But Jethro advocates a different approach. For Jethro, achieving social justice is the highest priority. Moses judges alone, which is impractical, and therefore, from Jethro’s point of view, misguided. In Jethro’s conception, the essence of the Torah, which means “a body of teachings,” consists in equitable relationships between people, and in establishing moral and ethical standards in society. Moses, however, sees the Torah as embracing a broader range of priorities and values.
(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: Jethro believes that maintaining peace within the Jewish nation is the first priority. Moses too considers such peace important, but he does not accord it first place. Moses ranks spiritual growth yet higher in importance than simply keeping the peace.
Because Jethro sees Moses’ relationship with the people as a kind of power structure, essentially, he proposes the principle of decentralized government, without which the system cannot work. But Moses believes that his primary task is to advance the people spiritually, and it is obviously better to learn spirituality from the masters directly than from their disciples. Both of these systems are found in real life, very often operating simultaneously. But getting them to work together in proper coordination is never easy.
(24) Moses heeded his father-in-law and did just as he had said: Moses waited for Jethro’s advice – advice that was all but self-evident! – and only then began to build a hierarchical judicial system. The purpose of the wait was to demonstrate to the people that this course of action was not ideal, and he was taking it only because he had no choice. Given that the ideal is unattainable, practically speaking, it would be wrong to stand one’s ground and insist on its observance, come what may. But it is vital that we at least start with the ideal as the basic premise, so that it may become a beacon for further advancement, and retain its place in the hierarchy of values.
No earlier example of this principle can be cited than that of Adam and Eve, who could not remain in the Garden of Eden for long and were necessarily expelled, but the image of the Garden of Eden has continued to accompany humanity ever since.
Likewise, the kingdom of David and his son Solomon could not long endure, but together they created for all time the image of a “proper” Jewish king.
Even a very brief encounter with the ideal (brief from the perspective of the span of human history) is often sufficient to establish it in the soul of the nation and of humanity. It remains as a firm foundation for the possibility of achieving that ideal someday once again, by virtue of our own efforts.
(25) Moses chose capable men out of all Israel, and appointed them heads over the people — chiefs of thousands, hundreds, fifties, and tens: The system described here is presented to us as designed to confer judicial power. Instead of Moses, who judged alone, the collective authority to judge now lies with the hierarchical chiefs.
But legal proceedings in no way require dividing a people into groups of tens, hundreds, and thousands of people. For the military organization of society, however, that is in fact absolutely necessary, because military units must be all approximately equal in size to assure their most effective operation. Thus, dividing a society into groups of tens and hundreds, and appointing chiefs of tens and hundreds over them, is more suitable for conquering a country than for addressing purely judicial needs.
In this sense, we can suggest that it is not so much a judicial system that is being described here (that is, for the resolution of the conflicts that arise in society), as a system of governance and power. Because the Jewish people are being sent to conquer the Land of Canaan, they must be organized as an army. Moreover, whenever the term shofet, “a judge,” appears later in the Torah in similar contexts, the sense is more military-administrative than strictly legal (it is in this sense that the term is used also later in the book of Judges, including the name of the book itself, Shofetim, the plural of shofet, “a judge”).
Chiefs of thousands: And yet, there are no “chiefs of ten thousands” as we might have expected. But six hundred thousand adults – the size of the Israelite nation that left Egypt (12:37) – will require six hundred “chiefs of thousands,” a rather large number, which, at least in theory, should have a further hierarchical structure imposed upon it.
We note, however, that from this point onward in the Torah practically all census figures for the Jewish people are calculated and recorded per tribe, and not for the nation as a whole. This leads us to conclude that it was the prince of each tribe who managed the “chiefs of thousands” of his respective tribe, of which there would now be fifty per tribe, on average, a much more reasonable number in management terms.
Moreover, from the Torah’s other descriptions of the nation’s structure (at the beginning of the book of Numbers, for example) we see that within each tribe the social structure does not follow a scheme of simple numeric division into groups of hundreds and thousands, but is instead based on relationships of lineage. The tribe is divided into subtribes, each subtribe has its own leader, and is further divided into families, which are further divided into subfamilies and then into clans, and then into yet smaller, more closely related family groups. It is obvious that this organic structure, established by birth, does not correspond to numeric divisions and subdivisions, because in different tribes, families, and clans different numbers of children are born.
Thus we see that the natural lineal structure that should prevail in peacetime, as it corresponds to the organic organization of society, is replaced here by a paramilitary structure. In this structure, the number of units is paramount, while, at the lower level, tribal relations are less important. All that really matters is that each unit or group of units belongs to the same tribe, thus affording all the members of that tribe a sense of cohesion and unity (in that era the sense of unity at the tribal level was very close to how we today perceive unity at the national level).
Both of these systems, the lineal-organic and military-numeric, are somehow integrated within each tribe, since the prince of each tribe heads both of those hierarchies. This dual principle was the foundation of the dominant social structure.
Chiefs of … hundreds, fifties, and tens: The divisions of the chiefs are in decimal increments (tens, hundreds, and thousands), except that there are “chiefs of fifties” as well. Perhaps it was done this way because the increment from tens directly to hundreds would be too steep – the “chiefs of tens” are chiefs over people, but the “chiefs of hundreds” are chiefs over other chiefs.
A hierarchical command structure is fundamentally different from one that is flat and direct; therefore, an intermediate position of “chiefs of fifties” is needed as a transitional stage between the chiefs of the tens and of the hundreds. Conversely, making the next higher transition, from hundreds to thousands, is easier psychologically, because the “chief of hundreds” has already learned to manage indirectly through the chiefs who are subordinate to him.
(26) And they judged the people at all times: the difficult matters they would bring to Moses, and all the minor matters they would decide themselves: A society should be self-governing to the greatest extent possible.
All of the above notwithstanding, the beginning of the book of Deuteronomy presents the hierarchical structure of governance (tens, fifties, hundreds, and thousands) in a completely different way. We will analyze the differences in our comments there.
(27) Then Moses bade his father-in-law farewell, and he went his way to his own land: The moment when Jethro actually “goes his way to his own land” is not specified here. Moreover, the Torah much later (Num. 10:29) records a conversation between Moses and Jethro (or possibly Jethro’s son). But if Jethro has now departed, how and when does that conversation take place?
As noted earlier, the sequence of events reported in the Torah is sometimes not chronological but associative. Thus, when the Torah says here that Jethro has departed, this can be understood as fundamentally accurate, even if not chronologically precise. That is, now that the matter of structuring the judicial system has been settled, Jethro has “in principle” already left to return to his country, even if physically he will still remain in the Jewish camp for some time.
The mention here of Jethro’s departure, before the giving of the Torah as described in the following chapter, would seem to indicate that Jethro does not enter into the Sinai covenant. This would mean that Jethro and his family do not establish for themselves a direct and independent channel of communication with God, and that they maintain that connection only indirectly, through their association with the Jewish people.