Room For Compromise1
If you do this thing, and G-d will command you, and you will be able to
endure. This entire people as well will arrive at its destination in peace.
With a flourish, Yisro concludes his proposalfor his son-in-law to lighten
the load upon him. After detailing a system of lesser courts and officials
that Yisro would like to see instituted, he speaks to Moshe about the
benefits that he can expect to see form these innovations. Our pasuk,
according to Rashi, combines several “if…then” phrases. Rashi takes the
second phrase, for example, to be one of the conditions. If Hashem concurs
with all I advise you, and issues the command Himself, then and only then
will our plan succeed.
We could suggest an alternative. We can see the entire pasuk as listing the
advantages of Yisro’s suggested administrative and legal system. Yisro calls
attention to three consequences for Moshe:
The first is that “G-d will command you.” By freeing up more time, Moshe
would be in a position to receive more direct commands from Hashem about
Torah she-b’al peh. Moshe was adept in the mechanics of the Oral Law. He
was able to use its tools to arrive at important halachic conclusions.
Often, he would retire to the Ohel Moed to review his learning. There, at
the location of the in-dwelling of the Shechinah, he would benefit from the
Divine Influence, receiving many fixed halachic conclusions through it.
Thus, a benefit of having more time available for his learning would be
receiving more Torah directly from Hashem.
Additionally, Moshe would “be able to endure” by instituting Yisro’s plan.
The weight of communal responsibility would be eased from his shoulders alone.
Finally – and perhaps most obviously – the people will “arrive at its
destination in peace.” Each person will find his tent in peace, not being
compelled to wait endlessly on line, seeking answers to his questions.
So far, the plain meaning of the text. We can explore it, however, on a
different level. The gemara considers an opinion that judges should not
seek pesharah/compromise in place of accurate psak. It points to Moshe, who
operated on the principle of “Let din pierce the mountain!” In other words,
even when dealing with a litigant as formidable and intransigent as a
mountain , the judges should not take the path of least resistance and
look for a compromise to avoid miffing the strong party. They should allow
the proper din and halacha to emerge, whatever the consequences. The gemara
goes on to contrast Moshe with his brother Aharon, the quintessential man of
peace, who did favor compromise.
The passage is troubling for a number of reasons. What is the source of the
gemara’s finding? From where did Chazal deduce that Moshe’s midah was
fastidiousness in din? Must we assume that the gemara – which praises strict
law over compromise – runs afoul of established halacha, since we maintain
halachically that the court is supposed to urge the litigants to accept
compromise rather than insist on pure din.?
“This entire people as well will arrive at its destination in peace.” Yisro
predicts that taking up his suggestion will usher in a period of peace upon
the people. He speaks about judges who are not fully expert in the law. Such
people need take counsel with others before arriving at a conclusion. Yisro
tells Moshe that by delegating some of his authority, many of the new judges
will favor compromise as a policy. Compromise is good, in that it brings
peace to the litigants and to a community.
This could not be Moshe’s way. Moshe’s din-piercing-the-mountain meant that
he quickly determined the law in his mind when he heard the opposing claims.
While it may be true that we hold a preference for compromise, the halacha
is also that judges may only suggest compromise in place of pure din before
a determination of pure din has been made. Undoubtedly, this also means
that pesharah is an option only prior to the point when they arrive at a
conclusion even in their minds about what the pure law has to say.
Because Moshe instantly grasped what the pure law was, he could never
suggest compromise. Such a way of bringing peace to the people was closed
off to him.
Indeed, it was closed off to the community as a whole as well – until the
judges that Yisro urged upon Moshe were installed and operating. Then a new
modality of creating peace through compromise came into being.
1. Based on Ha’amek Davar and Harchev Davar, Shemos 18:23
2. Sanhedrin 6B
3. See Maharsha there.
4. Choshen Mishpat 12:2
5. He takes issue here with the Shach, ibid. #4