Bar-Ilan University's Parashat Hashavua Study Center

Parashat Devarim 5762/ July 13, 2002

Lectures on the weekly Torah reading by the faculty of Bar-Ilan University in Ramat Gan, Israel. A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan University's International Center for Jewish Identity.
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Parashat Devarim 5762/ July 13, 2002
The People's Responsibility for Their Leaders' Actions

Dr. Itamar Wahrhaftig
Bar Ilan School of Law

From the very beginning, Moses' lengthy oration in the book of Deuteronomy is interwoven with references to events from the past. The Sages viewed these as words of reproach,[1] and Nahmanides (in his introduction to Deuteronomy) said, "Before beginning his explication of the Law, first he (Moses) set out to reproach them and remind them of their sins, of how they tried Him in the desert, and of how the Lord dealt mercifully with them, so that his words of reproach would keep them from returning to their sinful ways." In the light of these remarks, let us examine the first two stories presented in Parashat Devarim: the appointment of magistrates (1:9-18), and the story of the spies (1:19-46). Bringing these two incidents at the beginning of Deuteronomy makes us wonder about several points:
  1. Where is the element of reproach in the story about the appointment of magistrates? The original account in Parashat Yitro has to do with giving wise counsel, not with wrongdoing. That being so, why was this matter brought up here?[2]
  2. Verse 14 reads: "You answered me and said, ‘What you propose to do is good.'" In the original account, in Parashat Yitro, there is not the slightest hint that the people participated in making these appointments.
  3. In Parashat Yitro, the initiative is taken by Yitro, but here he is not even mentioned.[3]
  4. Verse 16 presents commandments dealing with judicial procedure: "Hear out your fellow men ..." What do the details of these commandments have to do with mentioning the appointment of magistrates in the context of reproaching the people?
  5. The appointment of magistrates is mentioned along with the story of the spies. Is there a connection between the two?
  6. With reference to the spies, the narrative here says that the initiative for sending spies came from the people: "Then all of you came to me and said." In the original account, in Parashat Shelah, the people are not mentioned at all, neither as initiating the idea, nor as sending the spies.[4]
  7. Verse 25 reads: "And they gave us this report: ‘It is a good land,'" but in Parashat Shelah, in contrast, it says that the spies spread calumnies about the land.[5]
  8. According to verse 29, Moses told the people not to fear the Canaanites, but in Parashat Shela there is no parallel to this encouragement.
To explain these points we must assume from the outset that the Torah can offer two different accounts of the same event, each account serving a separate function. These will differ in accord with the changes in time, place and circumstances of the telling. What one story emphasizes the other might omit, and what the other stresses the one might gloss over.

Silence as Consent

First let us consider the appointment of magistrates. Here the primary objective was not reproach, but to teach the people the meaning of responsibility. Moses was essentially saying to them: Do not depend on others, assuming that whatever you do, for better or for worse, depends only on your leaders and not on you yourselves. Such an approach is wrong and undesirable. For if you have accepted and agreed to an entire "project," you are party to it and bear responsibility for it.
It is true that the magistrates were appointed at Yitro's initiative, but the people gave their consent. Presumably the people were asked about it, as is indicated here ("You answered me and said, 'What you propose to do is good'"). In Parashat Yitro this detail was not important, but here it is significant to note that the appointments were made with the people's consent, albeit not on their own initiative.
This explains the first three points we raised. Before proceeding with the next points, let us skip to the last questions regarding the spies. Once again, it was the spies who persuaded the people that they were no match for the Canaanites, but the people consented, accepting the spies' words, and therefore they shared the responsibility. Moses meant to convey the message: You cannot get away with claiming that the spies were to blame. That explains why their story is not even presented here, but only the first part of their report, that "it is a good land," which they all said. The rest of the spies' report, such as the calumnies they spread about the land, are not relevant here insofar as they do nothing to mitigate the sin committed by the people.
Similarly, the initiative to send spies is not presented here in the same way as it was in Numbers. Whether the initiative came from the people (Deut. 1:22) or from the Lord (Numbers 13), the important point here is that responsibility for the results of the mission lay with the people. The people could not evade the issue by claiming they were not the sole initiators. This answers points six and seven. Now we return to points four and five.

A fair hearing as the response to the spies

To explain the relation between the two stories, that of appointing judges and that of the spies, we take the position that the appointment of magistrates is to be seen as the preface to the second story. So, for example, the magistrates must hear out both sides impartially and decide between them (Deut. 1:16). If so, when the spies came and stood one group opposite the other, two against ten, the people should have heard out "low and high alike," and not related to the two as lowly and unworthy of consideration. They should have ruled justly "between any man and a fellow Israelite or a stranger [Heb. ger] (ibid.)" which Rashi explains as, "his opponent in the lawsuit who merely heaps up [Heb. oger] words against him." If the spies were the ones who heaped up new arguments against the accepted view that the land is a good one and can be conquered by the Israelites, then the burden of proof rested on them. Therefore, the command "fear no man" followed forthwith, indicating that the people should not have feared the arguments heaped up by the spies.
Moses continued addressing the people, essentially saying to them: If nevertheless you had fears, then "any matter that is too difficult for you, you shall bring to me (Deut.1:17)." In other words, they should have presented their misgivings before Moses and should have expected to receive words of encouragement from Moses in the name of the Lord, "for judgment is to the Lord." This explains the relationship of the two pericopes at the beginning of Deuteronomy, as well as the need for commanding the people regarding fair judicial process, since proper judicial procedure is the key to successfully meeting the challenge placed before the people by the spies.
This also answers our last point. Moses, as well, appealed to the people not to be swayed by the spies.[6] Once again, his words about appointing judges must be understood as also relating to the spies: the argument between the spies should have been taken by Israel as something "that is too difficult for you" and therefore "you shall bring to me."
Herein lies a message for all time, namely that when the people go along with the decisions taken by their leaders, they also bear responsibility for these acts. The people cannot evade responsibility by claiming that they were not the initiators, or that they themselves did not actually do whatever act, etc. By silently consenting, or not opposing, they become party to the act or the failure to act. The spies cannot shoulder all the blame for the people, nor can Yitro detract from the people's credit in appointing magistrates. This message holds true not only for the ancient Israelites, but for any nation or body public, now just as then.

[1]See Rashi's quote of Sifre, Deut. 1:1.
[2]Indeed, on the words, "the trouble of you, and the burden, and the bickering" (verse 12), Rashi says this indicates they were burdensome, even heretical, distrusting Moses, and also complaining. If so, perhaps this hints that Moses' goal was reproach.
[3]See Nahmanides on verse 18.
[4]See Rashi's comments at the beginning of Parashat Shelah.
[5]Rashi explains that "they" who gave the report in v.25 refers only to Joshua and Caleb.
[6]Why this was not mentioned in Parashat Shelah remains unclear. Nahmanides, in his commentary there (Num. 14:5) maintained that the words, "Then Moses and Aaron fell on their faces," meant that Moses and Aaron spoke up and tried to persuade the people not to be swayed by the spies. Here (Deut.1:25), in contrast, Nahmanides felt compelled to explain that the words, "Have no dread or fear of them" (v. 29) were not telling what happened in the past, rather they were Moses' words at the moment, as he delivered his reproach.