RITSS HIGH SCHOOL
PRESENTS A D`VAR TORAH
ON YISRO
MOSHE RABAINU - A ONE MAN SUPREME COURT
By Rabbi Moshe Heigh
"They will bring every major case (hadavar HAGADOL) to you..." (18:22). When Moshe's father-in-law advised him regarding the appointment of additional judges and courts to lighten the burden from him, he conceded that Moshe himself would still have to give attention to the most significant cases. The relatively minor situations would be judged by the lower courts, but Moshe would decide on the more complex ones.
"They would bring the difficult cases (hadavar HAKASHEH) to Moshe..." (18:26). When Moshe did take the advice of Yisro, his father-in-law, the Torah informs us that the system of courts would work the way Yisro prescribed. But the Brisker Rav, Harav Yitzchok Ze'ev Soloveichik, notices something unusual. Why does the Torah change its description of the most major cases? In 22, they are referred to as "gadol" - big or major. In 26, they are called "kasheh" - difficult. What is behind this?
[Before we tackle this main issue, a side matter needs to be mentioned. Jewish courts are referred to as Sanhedros. Since we will use the word "Sanhedrin" repeatedly, it is appropriate to clarify its deeper meaning now. One place it is brought down is on page 541 of the Ta'amei Haminhagim, paragraph 140. In the name of the Maharil, it is shown how the word "Sanhedrin" is a contraction of "sonim hadras panim badin". Combine the parts of the words which we have put in bold print, and you will see the resemblence to the word Sanhedrin. The message is that the members of these Jewish courts abhor favoritism in judgement. The term "hadras panim", in this case, is like "maso panim", which denotes favoritism. "Sonim" means that they hate it. In other words, the essence of a dayan, a judge, is his hatred of partial treatment of litigants. This was just a note to clarify the deeper meaning of the word "Sanhedrin".]
Let us return to the Brisker Rav's remarks. Why are the major cases referred to as "gadol" in one place, and "kasheh" in another pasuk? We will demonstrate that in fact, there were two types of cases brought to Moshe Rabainu. Some were gadol, but some were kasheh. Rav Yitzchok Ze'ev elucidates this as follows.
The courts created by Moshe upon his father-in-law's suggestion each contained twenty three men. This can be proven from a Mishna and Gemara in Tractate Sanhedrin. In the Mishna of 2A, it states that the only way courts are allowed to be formed for the shevatim (tribes) of Bnai Yisroel is with the authority of the supreme court, the bais din of seventy one judges. In short, it takes seventy one to create smaller units of twenty three. As Rashi on the Mishna explains, in each city of Eretz Yisroel, once we would settle there, a court of twenty three was supposed to be created. The great bais din of seventy one, whose headquarters would be in the Bais Hamikdosh itself, had the responsibility to go out and oversee the appointment of competent judges for these courts.
In the middle of Sanhedrin 16B, the Gemara derives this halacha from the actions of Moshe Rabainu. The Gemara states that Moshe was the equivalent of a court of seventy one judges, and we see that he appointed theses smaller courts (of twenty three each - using Rashi on the Mishna). In the words of Rashi on this Gemara, "Moshe was a judge based on Hashem's words, and he was equivalent to the Great Sanhedrin which was in Yerushalayim".
We see that Moshe himself was like the supreme court of Bnai Yisroel, and he set up courts of twenty three people each. It should be noted, declares the Brisker Rav, that THERE ARE TWO TYPES OF CASES WHICH MUST BE BROUGHT TO THE GREAT SANHEDRIN OF SEVENTY ONE. Yes, you have guessed it - one will be classified as "gadol", and one will be labeled as "kasheh". This will explain the two terms employed in the psukim.
Some situations are intrinsically major, and are brought directly to the Great Sanhedrin of seventy one. In the Mishna on Sanhedrin 2A, we are taught some of these cases. If an entire shaivet, a tribe of Bnai Yisroel, needs to be judged, their case is brought immediately to the main court in certain circumstances. The same is true with a false prophet, and so with capital cases of a kohen gadol, a high priest. Other situations are listed which fall under the same category. An ir hanidachas - a city of idolators - is judged only by the Sanhedrin of seventy one. These important matters are classified as "hadavar hagadol".
The Brisker Rav directs us to the Rambam in Hilchos Sanhedrin 5:1 for additional information. A king can only be appointed by the Great Sanhedrin of seventy one men. The source for this is a Sifri in Parshas Shoftim. In truth, this halacha is found elsewhere in the Rambam himself, Hilchos Melachim 1:3. He states that in addition to the role played by the supreme court in the selection of a king, a prophet is required as well. For example, Yehoshua was designated by Moshe and his bais din. Kings Shaul and Dovid were both crowned by Shmuel Hanavi and his court. The bottom line is, though, that the Great Sanhedrin is needed to appoint a king. Back in the Rambam in Hilchos Sanhedrin 5:1, additional situations are mentioned which necessitate the involvement of the highest court. At the end of this halacha, the Rambam brings one of our psukim to support it. "They will bring every major case to you" (18:22). Remember, the term used here is "hadavar hagadol". Rav Yitzchok Ze'ev Soloveichik proves from here that this is the correct definition of "gadol" - the situations which are inherently major. They go straight to Moshe Rabainu, straight to the supreme court of the Jewish people.
If so, what cases fit into the category of "hadavar hakasheh" - difficult ones? Sometimes, a matter is relatively simple; the lower courts should be able to handle it. But things are not always as clear cut as they initially appear. What if a halachic dispute or uncertainty develops among the judges? Such cases must ALSO be brought to the Great Sanhedrin. True, they start out as routine litigation. But the complexities which arise afterward make it necessary to go to the top. This din is established in Parshas Shoftim. "If a matter will be concealed from you (too complicated to settle)...issues of disagreement in your gates, you must rise and go up to the place which Hashem your G-d will choose...." (Devarim 17:8). The pasuk is referring to disputes between halachic authorities of a city, regarding ritual purity, monetary matters, and other relatively simple questions. If such a situation will be unclear, the Torah requires us to take the issue to the Great Sanhedrin. This, says this Brisker Rav, is called "hadavar hakasheh" - a difficult matter. It is not "gadol" - major in its own right, but it did become complicated and confusing - "kasheh".
In summary, Moshe was the caliber of a Sanhedrin of seventy one judges. Every major case and every difficult case would be brought to him, just as such matters would later be decided upon by the Great Sanhedrin. "Gadol" and "kasheh" are two separate dinim.
"And I will restore your judges as at first..." (Yeshaya 1:26). May we be zocheh to see a world of justice and tranquility in our days.
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