Devarim 1:9-18 - The appointment of judges when the Jewish people were in the desert

The book of Devarim consists mostly of Moshe speaking to the Jewish people in the 40th year the people were in the desert, and Devarim 1:9-18 records that one thing that Moshe spoke about was his recollection of the appointment of judges when the people first came to the desert. The appointment of judges is also recorded in Shemot 18:13-26, and there are several differences between the description of this process of appointing the judges as recorded in Shemot 18:13-26 with Moshe’s recollection of this process in Devarim 1:9-18.

The major difference between these two descriptions of the process of appointing judges is that in Devarim 1:9-18, the aspects of the judicial system that Moshe stresses is that a judicial system punishes people for their misdeeds as a type of warning to the people not to sin again by refusing to enter the land of Israel. On the other hand, in Shemot 18:13-27, the stress is on the need for a judicial system, and not on the punitive aspects of the system. This distinction can be discerned by analyzing the differences between the sections. In addition, while Shemot 18:13-23 records Yitro’s suggestions concerning the judicial system, which was in the third month of the first year of the people’s stay in the desert, the actual appointment of the judges was only at later time, see our discussion on Shemot 18:13-27, “Yitro’s visit to Moshe and the need for a judicial system.” When Moshe implemented the system, he made several changes from Yitro’s suggestions.

One difference between Shemot 18:13-27 and Devarim 1:9-18 is that in Shemot 18:13-27 it is Yitro who suggested to Moshe to establish a legal system while Yitro is not mentioned in Devarim 1:9-18. Why was Yitro's role excluded in Devarim 1:9-18? Yitro was included in Shemot 18:13-27 since he was a foreigner, and the fact that he knew of how a judicial system should function showed that the existence of a legal system is a universal need. However, in Devarim 1:9-18, Moshe wanted to recall the punitive role of the judicial system, and was not concerned with who suggested the establishment of a judicial system. Thus, the fact that Yitro suggested the system could be excluded from the recollection of the event. In addition, it could be that Moshe did not mention Yitro’s name in Devarim since Moshe had made several changes when he implemented the judicial system in the desert.

A second difference between the sections is that Shemot 18:13-27 records that prior to the appointment of the judges, Moshe sat all day in judgment but without complaining, while Devarim 1:12 records that Moshe complained that the work was too difficult due to the people's fights. Why was this difficulty not mentioned in Shemot 18? The answer is that in Shemot 18, the objective was to show how laws are necessary which is shown by the numerous conflicts that existed amongst the people. The important fact is that Moshe had to sit all day, not how difficult the job was for Moshe. However, in Devarim 1:9-18, Moshe recalls the fights of the people as a warning for them to behave. Just as the people should not fight amongst themselves, they should not fight with G-d by refusing to enter the land of Israel. In addition, in Devarim 1:12 when Moshe recollected the complaints of the people this was referring to the time after Yitro’s advice and prior to the implementation of the system, as we know from Bemidbar 11:11-15 that the complaints of the people wore him down by the second year of the people’s stay in the desert.

A third difference between the sections is that Devarim 1:13-15 records that the people had a role in selecting the judges, while Shemot 18:25 records that Moshe seems to chosen the judges by himself. Presumably, Moshe received help in selecting the judges, and this was a change he made to Yitro’s suggestions, but why was this information excluded from Shemot 18? Again, in Shemot 18, the stress is on the existence of the conflicts, while the discussion about the judges themselves can be minimized. However, in Devarim 1:9-18, Moshe was also recalling the implementation of the judicial system, which had involved the people. Moshe’s recollection of the people’s involvement in the choosing the judges might also have been a message to the people to remind them that they accepted the idea of the judicial system, that people are to be held accountable for their actions. Moshe was then hinting to the people that as you accept this idea on the human plane so too this idea applies on the divine plane.

A fourth difference between the sections is that the qualification of the judges in Devarim 1:15 is their intellectual ability, while Shemot 18:21 records Yitro’s suggestion that the qualification of the judges is that they should be morally upright. These qualifications are not contradictory because judges should have both characteristics, and the need for intellectual abilities is one of the changes that Moshe made to Yitro’s suggestions when he implemented the system, that he appointed judges who he thought were both honest and smart. Maybe Yitro only mentioned the need for honest judges since he was worried that people might think that Moshe was choosing cronies. Furthermore, Moshe did not have to recall that the judges who were chosen were thought to be honest since in Devarim 1:17 he recalled that he told the judges to judge honestly.

A fifth difference between the sections is that Devarim 1:17,18 records that Moshe recalled that he instructed the judges to judge each individual on the merits of the case, while in Shemot 18 no instructions are given to the judges except to bring hard cases to Moses. Why were these instructions mentioned in Devarim 1:17,18 not recorded in Shemot 18? Again, the point in Shemot 18 is not how the system functioned, just that there is a need for a legal system. Thus, Shemot 18:26 can simply state, that the judges judged. However, in Devarim 1, the idea is to show how a legal system functions, and thus, the specific instructions of how to judge shows that the system is functioning. In addition, the judicial rules mentioned in Devarim 1:17,18 correspond to the laws mentioned in Vayikra 19:15, and then Moshe can refer to these rules in Devarim since in the 40th year these rules were known by the people.

A sixth difference between the sections is that Devarim 1:15 refers to shotrim but this term does not appear in Shemot 18. Shotrim appear to be the enforcers of the legal system. Again, in Shemot 18, they could be excluded because the enforcement of the judicial decision was not the important message at that point. However, in Devarim 1, the fact that shotrim are mentioned demonstrates that with a judicial system people are punished for their misdeeds. In addition, this was one of the changes that Moshe added when he implemented the judicial system that he added the shotrim.

Consequently, the two recordings of the establishment of a judicial system have two different purposes. In Shemot 18, the message is that a legal system is needed, but the performance of the system was not crucial at that time. Instead, the message is that there is a need for laws as prelude to the Decalogue and the laws of the covenant, the ensuing chapters in the book of Shemot. On the other hand, in Devarim 1, the message was that a judicial system punishes people for their sins, and thus, it was important for the system to function since only a functioning judicial system can punish people. This message would serve as a warning for the people not to sin by refusing to enter the land of Israel since they would be punished for their actions if they sinned again.