Shoftim (Deuteronomy 16:18-21:9 )
At times of indecision, when ambiguity reigns and man does not know what the Divine Law expects of him, the Torah offers a path out of the darkness:
If there arises a matter of judgment that eludes you, between blood and blood, between plea and plea, and between plague and plague, being matters of controversy inside your gates; then shall you arise, and go to the place which the Eternal, your God, shall choose. And you shall come to the priests the Levites, and to the judge who shall be in those days, and inquire; and they shall declare to you the ruling of judgment. And you shall do behave according to the ruling which they shall pronounce from that place which the Lord shall choose. And you shall take care to do according to all that they instruct you. (Deuteronomy 17:8-10)
This passage presents the problem, as well as a seemingly straightforward and reasonable solution: A multi-tiered system of jurisprudence is established to resolve disputes and clarify the law. The sentence which immediately follows this passage, though, is potentially troublesome:
According to the sentence of the Torah which they shall teach you, and according to the judgment which they shall tell you, you shall do; you shall not stray from the sentence which they shall declare to you, to the right, nor to the left. (Deuteronomy 17:11)
The judges in this system possess absolute authority; we are not to deviate from their rulings "to the right or left". Rashi felt this phrase requires some explanation:
Right and left - even if they say to you that right is left and left is right, certainly if they tell you right is right and left is left. (Rashi, Deuteronomy 17:11)
Rashi's comments take the authority of the judges even further, to an almost unthinkable extreme: even if an individual's certainty regarding a specific question of law is as unequivocal as his knowledge of his own right and left hands, he must nonetheless bow to the authority of the judges, and accept their ruling even if it completely contradicts his own certainties. Rashi's comments, rather than clarifying the verse, seem to lead us away from the straightforward meaning of the text: While the passage began with a situation of doubt, Rashi's comments regard a situation of certainty. At least one of the individuals involved in a dispute over interpretation of the law is, in fact, as certain of the veracity and their own opinion as they are of their own right and left hands. Either one of the adjudicants, or one of the judges, does not share the doubts of the other parties involved, but is unable to convince the others. As a result, the decision that is reached is one that this individual "knows" to be wrong. Rashi insists, based on the seemingly superfluous words "right and left," that the dissenting individual, be he a judge or a plaintiff, must accept the ruling of the majority, no matter how certain he is that his own opinion is correct.
But how can a person be expected to follow a ruling, especially in matters concerning Divine Truth, which he knows to be wrong?
The Ramban softens the blow somewhat, by adding one more phrase: Even if you think they are wrong, you are obligated to accept the judgment handed down by the majority of the judges. According to this approach, the dissenting opinion is not based on absolute knowledge or certainty; the dissenter believes the others to be incorrect. Nonetheless, says the Ramban, the dissenter must bow to the rule of the majority and adhere to their interpretation of the law.1
We are faced, then, with the larger philosophical problem: abandoning what you know to be true, in fulfillment of this commandment to embrace the ruling of the judges. The Sefer Hachinuch addresses this problem, and offers a practical approach:
...meaning even if they are mistaken in a particular ruling it is not appropriate for us to argue with them, rather we follow their mistake. For it is better to suffer one mistake, and to remain devoted (subject) to their well-informed opinions, rather than have each and every individual act according to his own opinion, for that would cause a destruction of the religion, cause a division among the people, and the complete loss of the nation. It is for these reasons that the intention of the Torah was transmitted to the Sages of Israel, and it was commanded that the minority would always submit to the minority, along the lines of what I have described as the Mitzva to accept the majority opinion. (Sefer Hachinuch, Mitzva 496)
The Chinuch is afraid of anarchy, of legal, social, national chaos. He does a pragmatic calculation, and concludes that it is better to suffer occasional mistakes than to risk the collapse of the entire system.
Yet what is the effect of such pragmatism on the Divine system of law? What is the relationship of human error with the Word of God? The laws in question are part of a Divine system; these are Gods laws. Surely, these human mistakes - which we have been commanded to follow! - must certainly dilute the Divine.
Divine law has a weak link: the human component - man. Nonetheless, God entrusts man as a partner in the process of revealing Divine Truth to the world. Part and parcel of this system of Divine Law is this verse in Parshat Shoftim, in the 17th chapter of Deuteronomy: The commandment to adhere to the decisions handed down by the judges of each generation is one of the mitzvot of the Torah, a Divine Law. The question is, what happens when one Divine Law collides with another Divine Law? What happens when the judges are mistaken and they rule that left is right and right is left? In such a case, by adhering to the decision of the judges and "transgressing" against the substance of a law regarding which they are mistaken, we are, in fact, following the procedure prescribed by the Torah in this very verse.
And yet, despite this explanation we are left with a queasy feeling: How can a Torah-observant Jew possibly do something against the Torah - even if the Torah itself instructs him to do so? The victory of procedure over substance is a hollow victory, which leaves our thirst for truth unsatisfied.
The Vilna Gaon addresses this issue in his explanation of a very well-known and very troubling passage in the Talmud regarding an argument between Rabbi Eliezer and all the other sages on a point of law. Rabbi Eliezer musters one sign from heaven after the other to "prove" his position, yet the sages reject each heavenly "proof" as irrelevant to the subject at hand:
It has been taught: On that day R. Eliezer brought forward every imaginable argument, but they (the other sages) did not accept them. Said he to them: 'If the halachah agrees with me, let this carob-tree prove it!' Thereupon the carob-tree was torn a hundred cubits out of its place. Others say [it was] four hundred cubits. 'No proof can be brought from a carob-tree,' they retorted. Again he said to them: 'If the halachah agrees with me, let the stream of water prove it!' Whereupon the stream of water flowed backwards. 'No proof can be brought from a stream of water,' they rejoined. Again he urged: 'If the halachah agrees with me, let the walls of the Beit Midrash prove it,' whereupon the walls inclined to fall. But R. Yehoshua rebuked them, saying: 'When scholars are engaged in a halachic dispute, what right have you to interfere?' Hence they did not fall, in honor of R. Yehoshua, nor did they resume their upright position, in honor of R. Eliezer; and they are still standing thus inclined. (Talmud Bavli Bava Metziah 59b)
As a last resort, Rabbi Eliezer finally calls upon the ultimate arbiter; he asks that Heaven adjudicate and issue a decision. Remarkably, the heavens open up and a voice rings out in support of Rabbi Eliezer:
Again he said to them: 'If the halachah agrees with me, let it be proved from Heaven!' Whereupon a Heavenly Voice cried out: 'Why do you dispute with R. Eliezer, seeing that in all matters the halachah agrees with him!' But R. Yehoshua arose and exclaimed: 'It is not in heaven.' What did he mean by this? - Said R. Yirmiyah: Since the Torah has already been given at Mount Sinai, we pay no attention to a Heavenly Voice, because long ago You wrote in the Torah at Mount Sinai, (Shmot 23), "After the majority must one incline." (Talmud Bavli Bava Metziah 59b2)
This is the ultimate victory of procedure over substance; essentially, the Rabbis tell God Himself to "mind his own business." They knowingly, adamantly, set aside the truth, and teach God Himself, as it were, a lesson: Truth may take a beating, but procedure must take precedence.
But how could they proceed? How could they ignore what they now know to be the true opinion? Rabbi Eliezer was the only one to have seen the truth, and he was unable to convince his fellow judges and scholars of the logic of his opinion. Nor was there a decisive legal precedent upon which to rely. When Heaven interceded, when all of the natural world was upended by Rabbi Eliezer's truth, should the majority of the sages not have abandoned their own position, which was clearly less valid than the dissenting opinion of Rabbi Eliezer?
The Vilna Gaon explained the concept based on the following Midrash:
R. Simon said: When the Holy One, blessed be He, came to create Man, the ministering angels formed themselves into groups and parties, some of them saying, 'Let him not be created,' whilst others urged, 'Let him be created.' Thus it is written, 'Love and Truth fought together, Righteousness and Peace combated each other" (Tehilim 85, 11). Love said, 'Let him be created, because he will dispense acts of love'; Truth said, Let him not be created, because he is compounded of falsehood'; Righteousness said, ' Let him be created, because he will perform righteous deeds'; Peace said, 'Let him not be created, because he is full of strife.' What did God do? He took Truth and cast it to the ground. Said the ministering angels before the Holy One, blessed be He, 'Sovereign of the Universe! Why do You despise Your seal? Let Truth arise from the earth!' Hence it is written, "Truth springs up from the earth" (ib. 12). … R. Huna the Elder of Sepphoris, said: While the ministering angels were arguing with each other and disputing with each other, the Holy One, blessed be He, created (Man). Said He to them: 'Why are you debating (to no avail)? Man has already been made! (Midrash Rabbah - Genesis 8:5)
The creation of man defies the attribute of Truth, the very Seal of God. Man's nature, with all its foibles and inner contradictions, cannot even approximate truth as it exists in Heaven. This is the point of the Midrash: The act of creation required an admission that man could not exist, nor should he be expected to exist, according to the level of absolute, Divine Truth which exists in Heaven. When God flung Truth to the earth, He effectively relinquished control upon truth; moreover, here on earth, there is a different level of truth, which is as least partially based upon human understanding. Truth on earth - human truth - is based necessarily on human nature. It is created by the majority opinion of our scholars; it is born of their collective understanding of Divine Law. And when the scholars are mistaken in substance, when their conclusions are erroneous, we can take comfort in the knowledge that, had God expected man to always completely identify with truth as it exists in Heaven, man never would or could have been created.3
This concept may help us understand another difficult episode in the Torah: When Moshe descends Mount Sinai with the Tablets of Stone in his hands, he has already been informed of the terrible sin perpetrated by the people: He was told, while he stood at the peak of the Mountain in God's Presence, that the people had strayed and had built a Golden Calf. When Moshe saw the outrage with his own eyes, he threw the Tablets to ground, shattering them.
And it came to pass, as soon as he came near to the camp, that he saw the calf, and the dancing; and Moshe's anger burned hot, and he threw the Tablets from his hands, and broke them beneath the mount. (Shmot 32:19)
At face value, it seems that Moshe acted out of anger, and he vented his emotions on the Tablets. However, the Talmud reports that Moshe's behavior was, in fact, supported by God.
And how do we know that the Holy One, blessed be He, gave His approval? Because it is said, "Which you broke"; and Resh Lakish interpreted this: "More power to you that you broke." (Talmud Bavli Shabbat 87a)
In light of the Midrash we read earlier, we begin to realize that when Moshe threw the Tablets of Stone, the words of Torah written by the Hand of God, to the ground - his behavior paralleled that of God Himself: Just as God threw Truth the ground in order to create Man, so Moshe threw the words of Torah, the Divine Truth given to us on Sinai, to the ground at the foot of the Mountain. Throwing the Tablets to the ground was, in effect, the same action. As Moshe descended from heaven to the spectacle unfolding in the camp, he fully grasped the vast chasm that separates heaven and earth. Moshe had just seen and experienced Truth in heaven; he had a unique perspective of the impossibility of effectively carrying that level of pure Truth down to earth.
Moshe's behavior was meant to serve as a reminder to God: By throwing truth to the earth, God Himself acknowledged that man is tainted and limited. If man were judged based upon heavenly Truth, we would all be found guilty. There would be no chance for our survival, no justification for our existence. But once truth is flung to the earth, a new, human standard is created, by which man can be judged. God Himself, by casting Truth to the earth, had set aside pristine, Divine Truth, and created man. When that man sinned, and was at risk of annihilation, Moshe followed in God's footsteps by throwing the Tablets to the ground. By mimicking the Divine gesture which enabled man's very creation, Moshe makes a powerful argument for man's exoneration, for forgiveness: Man, who cannot be perfect and was never meant to be perfect, has this other standard of truth to use in his defense. Even when man has transgressed against God and against His attribute of Truth in the most profound way, he has this to fall back on. He can yet plead with God.
In fact, all forgiveness is, in a sense, a corruption of truth: When man sins, there should be punishment - unavoidable, natural, unyielding consequences. Yet we might suspect that those who desperately seek truth and are perturbed by any perceived lack of truth caused by the triumph of procedure over substance in the legal system, are not as demanding and truth-seeking on Yom Kippur. Would they desperately ask God to treat them with pure truth - and the justice it must necessarily bring in its wake - or would they seek compassion and clemency, a softer, more understanding scale of truth and justice?
Even when we sincerely attempt to understand God's rules and laws, to discern and adhere to the Divine Truth that is transmitted in the laws of the Torah, we may sometimes fall short. It is important that we know that we are not expected to live according to Truth as it exists in heaven; that sort of Truth was always out of our reach.4 Broken truth, truth on the ground, is the foundation of Creation, and the key to our continued existence.5
1. See Ramban Deuteronomy 17:11.
2. To properly understand this passage it is important to read it in context, including the conclusion of this passage. I hope to return to this text for a fuller treatment of the entire passage at a later date.
3. Kol Eliyahu commentary to Talmud Bavli Bava Metzia 59b.
4. See the introduction to Responsa Igrot Moshe by Rabbi Moshe Feinstein, Oruch Chaim volume 1.
5. See Rav Nachman of Breslov's similar formulation: Liqutei Halachot, Laws of Interest, law 5.