What makes a Legal Case a “Major” one?

But you shall choose out of the entire nation men of substance, God fearers, men of truth, who hate monetary gain, and you shall appoint over them leaders of thousands, leaders of hundreds, leaders of fifties, and leaders of tens. Shemot 18:21

As is well known, Yitro, Moshe Rabbenu’s father-in-law, advised him to reform the juridical process used to mete out justice for the Jewish people during their travels in the desert on their way to the land of Israel:

It came to pass on the morrow that Moshe sat to judge the people and the people stood around Moshe from the morning until the evening. Moshe’s father-in-law saw all that he did for the people and he said: “What is this that you do to the people . . . ?” And Moshe answered his father-in-law: “Because the people come to me to inquire of God. If they are solicitous about any matter, they come to me. I have to judge between one and the other. I have to make the laws of God and His teachings known.”

Moshe’s father-in-law said to him: “What you are doing is not good. You will surely wear yourself out and the people that are with you, for this thing is too heavy for you alone, you are not able to carry it out. Listen to me . . . you shall appoint out of all the people able men . . . and place them over them [the Israelites], leaders of thousands and leaders of hundreds, leaders of fifties and leaders of tens. And let them judge the people at all times and it shall be that every major matter will be brought to you but every minor matter they [the other judges] shall judge . . . ”^[1]

Major versus minor

It is generally believed that Moshe fully implemented Yitro’s program of reforms and indeed appointed judges to hear the smaller cases, freeing Moshe to involve himself only in the major ones. However, a careful reading of the text reveals that this is not entirely true. It seems that Moshe was not prepared to take his father-in-law’s suggestions at face value — that in fact, he saw some flaws in Yitro’s approach. When we dig a little deeper into how Moshe actually implemented changes in the national judicial structure, we see a most significant difference between Moshe’s and Yitro’s attitudes in regard to the application and function of the law.

When Yitro suggests changes in the juridical process, he makes a distinction between a major case (davar ha-gadol) and a minor case (davar ha-katan). However, when Moshe puts these recommendations into practice, he makes a distinction between a hard case (davar ha-kasheh) and a minor case (davar ha-katan): “And they [the judges] judged the people at all times; the hard case (davar ha-kasheh) they brought to Moshe and the minor case (davar ha-katan) they judged themselves.”^[2]

Various commentators explain that there is a vast difference between what Yitro calls a major case and what Moshe calls a hard case. Yitro considered a major case to be one involving, for example, a large sum of money. Consequently, in Yitro’s proposal, Moshe would only judge high-stakes, “headline-producing” cases in which substantial amounts of money or property were at issue, while minor monetary disputes would be heard by the judges in the “lower” courts.

Juridical complexities

Moshe seems to object to this vision for the judicial system. In his eyes a “major case” is one that is harder to judge because of the more complicated and difficult legal principles involved, or because of the subtlety of the distinctions the judge would need to make in order to decide correctly. Obviously then, a so-called hard case could have an enormous amount of money or a paltry sum on the line. A problem related to a small amount of money can sometimes cause a judge more juridical hardship — forcing him to draw upon more of his wisdom and experience — than disputes over larger amounts of money.

Jewish Law and Ethics view the quantity of money at stake as completely inconsequential to the rabbinical court’s dealings with monetary cases. Justice is (or at least tries to be) absolute, while money is relative. What the rich man sees as a mere trifle is a fortune in the eyes of the poor. No objective distinctions between major and minor can be made on the basis of quantities.

Yitro, whose suggestions in part reflected the materialistic ideology of his idolatrous society, could not (yet) fully grasp the notion that “having” more in no way implies “being” more. Moshe Rabbenu, who never for a moment considered that he should give his time and wisdom only to the wealthiest members of the Jewish People, allowed his father-in-law the honor of restructuring the Jewish nation’s juridical procedures, but at the same time, without even mentioning it, he radically altered the intent and content of Yitro’s program of reforms.

In many ways Moshe’s response demonstrates the way Jewish wisdom is meant, more generally, to interact with the world at large. Its purpose is not always to replace other systems, which are many times socially beneficial and highly effective, but rather to refine and elevate these systems in the moral dimension, by imbuing them with Jewish values.

Notes:

^[1] Shemot 18:13-22.

^[2] Ibid. 18:26.

Questions to Ponder from the DCA Think Tank:

1. Yitro’s suggestion to Moshe about reforming the Israelite’s judicial system in the desert was meant to relieve Moshe of the burden of adjudicating every legal matter (“You shall surely wear yourself out”) while also reducing the frustration of the people who had to wait until their case could be heard (“and the people that are with you”). Considering that Moshe appreciated the wisdom of his father-in-law in this regard, even though he ultimately changed the way cases should be divided up amongst the various levels of judges, why do you think Moshe himself did not come up with such a system? Why did he need someone from the outside to tell him that a one-man judicial system simply won’t work for an entire people?
2. Rabbi Cardozo brings an interpretation of Yitro’s “major” cases as representing high-stakes, headline-producing cases, meaning only the cases of the rich and famous, and Moshe’s “hard” cases as representing legally complex cases, regardless of the amount of money or property at issue. Can you provide another interpretation that differentiates Yitro’s “major” cases from Moshe’s “hard” cases?
3. Modern judicial systems do seem to differentiate between small-stakes and high-stakes cases. For example, there are small claims courts which deal with monetary issues up to a limit, beyond which the case must be heard by a higher court. Ostensibly the logic behind this appears to be that smaller stakes cases, whether in monetary matters, damages or torts, are inherently less complicated than higher stakes cases. Rabbi Cardozo presents a different view and argues that the stakes should not be a consideration at all in deciding which court should review a case; rather it should be the level of complexity of the legal principles involved which a judge might have to use to come to a proper decision which should arbitrate which court reviews the case. Yitro’s suggestion was meant to make the judicial system of the Jewish people more efficient and possibly also more effective.
   

   Does Moshe’s interpretation of Yitro’s suggestion undermine this efficiency for the sake of absolute (at least as absolute as is humanly possible) justice? Do you believe that this is the best way for justice to be served?