Parshat Shoftim – פרשת שפטים

Parshat Shoftim – פרשת שפטים
September 10, 2016 - ז אלול תשע"ו   Accepting Contemporary Leaders   Concerning the obligation for local courts to seek guidance in difficult cases from the supreme national judicial body, Scripture states, “And you shall come to the Levitical priests and to the judge who will be in those days, and you shall inquire and they will tell you the matter of the judgment (Deuteronomy 17:9).”  Scripture again uses the expressionאשר יהיה בימים ההם  “who will be in those days,” to describe: a) the magistrate before whom civil litigants present their case (19:17), b) the priest who officiates at the First Fruits ceremony (26:3), and c) the serving High Priest upon whose death the accidental manslayer may leave the city of refuge (Joshua 20:6).   Biblical scholars have long wondered why Deuteronomy makes a habit of identifying judges and ecclesiastics as being presently in office.  Absent the fictional flux capacitor or the ability to engage in time travel, it is obvious that the official to whom one turns for adjudication or ceremonial religion is, necessarily, one “who will be in those days,” i.e., the person then alive who holds that office.   Regarding the First Fruits, Ibn Ezra suggested that the phrase “in those days” teaches that the commandment is operative only when a High Priest holds office, but that in the absence of a Levitical hierarchy the ceremony falls into desuetude.  Ramban understood the verse to mean that one may not bring one’s neighborhood priest to the Temple and deposit the basket of fruit with him.  Rather, one must hand the basket to the priest who is then fulfilling his rightful term of service.  Jeffrey Tigay commented that priests and judges are described this way in Deuteronomy and Joshua “perhaps to emphasize that the books are legislating for the future as well as the present.”   Rabbi Jose the Galilean noted the impossibility of going to a judge or priest not in one’s generation.  He explained Deuteronomy 17:9 as legitimizing the judgment rendered by someone who previously had been related by marriage to one of the litigants but whose familial relationship had ended before the trial (Sifre Deuteronomy 153; Sanhedrin 28b).  He explained 26:3 to mean that if one performed the First Fruits rite with an officiant who was presumed to be a genealogically pure priest but who later was exposed as being the son of a divorcee, and thus unfit for Temple service, the ceremony is nonetheless valid ex post facto (Sifre Deuteronomy 298; Kiddushin 66b).   The best known rabbinic explanation of the seemingly superfluousאשר יהיה בימים ההם  is that Scripture is trying to impress upon the layman the need to accept contemporary leadership (Rosh Hashanah 25b).  It is often assumed, justifiably or not, that the cultic officials of the past were more pious than those of the present, and that the judges and legal expositors of the past were more expert and sagacious than those of the present.  Popular belief in the unworthiness of contemporary leaders could tragically lead to a breakdown in civil society and the religious order.  A late Biblical writer warned of this phenomenon: “Don’t say, ‘How has it happened that former times were better than these?’  For it is not wise of you to ask that question (Ecclesiastes 7:10).”  The propensity to ask such questions and to harbor such feelings is especially strong in a society that longs to “renew its days as of old” (Lamentations 5:21; see also my recent essay “Restoring the Glorious Past” 8/11/16).   The Talmudic context for this lesson is a famous calendrical dispute.  Rabban Gamliel used/abused his Patriarchal prerogatives and accepted eyewitness testimony concerning the new moon that was prima facie inaccurate.  Rabbi Joshua was reluctant to accept Gamliel’s calendrical reckoning.  Gamliel reasserted his absolute authority by coercing Joshua to perform labors on what would have been Yom Kippur according to Joshua’s reckoning.  Rabbi Dosa ben Harkinas, who in theory agreed with Joshua about Gamliel’s error, tried to comfort Joshua by saying that it is wrong to dispute the calendrical rulings of the High Court, because to do so would open up challenges to every such decision made since the days of Moses.  Moreover, the seventy elders who served alongside Moses are not identified by name, thus teaching that any court of three in any generation has the same legitimacy as Moses’ court (Mishnah Rosh Hashanah 2:9).   Scripture groups Moses, Aaron, and Samuel (Psalms 99:6).  In recalling the leadership of God’s salvific agents, the Bible first mentions Moses and Aaron (I Samuel 12:8), followed by Gideon, Samson, Jephthah, and Samuel (12:11).  The Talmud derived from these texts the principle that whether or not a national leader is one of the historic greats or a substantially lesser light, he and his authority are deserving of respect.  Gideon in his generation is like Moses in his generation, Samson like Aaron, and Jephthah like Samuel.   A strand of rabbinic thought posits the notion of ירידת הדורות, the decline of the generations.  In this view, since each passing generation is necessarily further removed from the Sinaitic Revelation, the result is an unavoidable decline in spiritual standing and Torah scholarship.  The Talmud expresses this notion in a variety of humorous and hyperbolic ways.  “If the earlier ones were the sons of angels, we are the sons of man.  And if they were the sons of man, we are the sons of donkey and not the righteous donkey belonging to Phinehas ben Yair (Shabbat 112b).”  “The hearts of the early ones were as wide as the entrance to the Temple Antechamber.  The hearts of the later ones were as wide as the entrance to the Holy.  Our hearts are as wide as the eye of a needle (Eruvin 53a).”  “The fingernails of the early ones were better than the stomachs of the later ones (Yoma 9b).”   “The decline of the generations” is a useful construct insofar as it deters later religious leaders from too easily legislating the undoing of long-standing Judaic practices and legal precedents.  Early figures in the history of the Conservative Movement’s halakhic discussions (c. 1917-1948) often cited the above Talmudic passages in explaining their hesitation to rule in opposition to the legal opinions of their older Orthodox colleagues who had received semikhah from the great academies of Eastern Europe and were regarded as superiors.   And yet complete acceptance of the premises ofירידת הדורות  could easily lead to ossification of both halakhah and Jewish thought.  Some rabbinic authorities, most importantly Maimonides, denied that the notion of the inevitable “decline of the generations” should be considered axiomatic.  Deuteronomy 17:9, as interpreted by the sages, teaches the importance of accepting leaders and their lawful exercise of judicial and clerical authority, irrespective of how those leaders rank in the grand scope of history.  The key institutions of religion and state must be able to function and should not be compromised by popular cynicism.