Packing the Court

This week’s parsha, Devarim, always precedes Tisha b’Av, the saddest day of the Jewish calendar, which is the anniversary of the debacle of the spies. As Moshe begins his farewell address, he discreetly recalls to Israel their missteps which caused the redemption to be delayed by so many years. There is a passage that is customarily read in the melody of Eicha, connecting the words of the parsha to the tragedy of the destruction of both Batei HaMikdash: “How can I bear by myself your troubles, your burdens and your disputes?” (Devarim 1:12).

Ramban first examines the preface to this verse, “I said to you at that time...” (ibid. 9). Of what time is Moshe speaking? Clearly, the trouble began when Bnei Yisrael left Har Sinai, where they had assembled to receive the Torah. There, at Har Sinai, everyone was unified in service of Hashem. They were ready to enter into the Land. But once the camp moved, it separated into factions, and the failings of the people were born of factionalism.

“How can I bear it?” Moshe sighs in the melody of Eicha. Ramban defines each of the items enumerated by Moshe that he struggled to bear.

“Your inconveniences” (tarchichem) refers to the inherent difficulty in teaching a nation of slaves the complexity, the beauty, and the nuance of Torah. Moshe labored day and night to explain and communicate the Torah so that at least the leaders of the people would understand. “Your burdens” (masachem) are the constant prayers that Moshe had to offer to Hashem, pouring his heart out to intervene again and again when Israel transgressed so that they would be spared Divine retribution. Finally, “your disputes” (rivchem) refers to the unwillingness of a party to a legal dispute to accept the ruling of the judges once they were appointed by Moshe.

According to Rashi (following Sifri on Devarim 12), when litigants were not satisfied with the decision of the court, they became troublemakers (tarchanim) looking for loopholes and demanding that the matter be referred to a larger court. In this way, the wealthy and the powerful would seek to manipulate the system by adding judges until they received the judgment they sought.

Ramban acknowledges the practice, but he doesn’t concur that it is necessarily a bad thing. In fact, he states that the idea of escalating difficult matters to higher courts is a praiseworthy practice which confers honor on the law. However, the dispute must be in good faith, and the judges added all wise and learned men of unimpeachable virtue. In this way, the process of halacha can reach the proper conclusion in even the most difficult and inscrutable matters, which is, after all, the aim of the entire earthly system of adjudicating Divine law. But if people seek to manipulate the system – not because they seek the truth but because they want to leverage their wealth and influence – then this is a perversion of the system and no good will come of it.