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(Deut 16:18 - 21:9)

D'varim/Deuteronomy 17:8   If a matter of judgement is too difficult for you ... matters of contention in your gates, you shall come and arise to the place that the L-rd your G-d will choose.


From the English translation, we might have expected to see the Hebrew root , "to be hard or difficult" (Davidson) in this text, but instead the author has used , the Nif'al 3ms prefix form of the root . This is not used in the Tanakh in its Qal voice, but in Nif'al it can mean "to be extraordinary, great; to be hard or difficult; to be wonderful or marvellous" (Davidson) and it is the root of one of the words used for a miracle. It is very similar to the root , to be separated, distinguished or hidden", so many of the Jewish commentators take that translation. What Is ...

Targum Onkelos: An early (1st-2nd Century CE) translation/paraphrase of the Torah into Aramaic; attributed to a Roman convert to Judaism, Onkelos; used in Babylonian synagogues during the Talmudic era
Targum Onkelos explicitly changes the Hebrew to the Aramaic , "it is hidden". The preposition works with both; either in the Hebrew comparative construction, "too difficult for you" or the Aramaic, "hidden from you".

Here, in the text of the Torah itself, is an admission that as given to Moshe, the Torah is not permanently and definitively complete. It contains all the principles, but applications and interpretations will grow in each age as new situations and circumstances arise that the Torah doesn't name or discuss. Antibiotics, computers and mobile 'phones are not mentioned in the Torah; neither are hedge funds, sodium bicarbonate or Scrabble. These things were 'hidden' from the original author(s) who wrote the Torah and from the Sages whose discussions fill the pages of the Mishnah and Talmud. But the rabbinic world has nevertheless derived halacha for all of these and many more - although there are different rulings from the different streams of Judaism and even from individual rabbis. Richard Elliott Friedman comments that, "In every law code these must be a mechanism for change and for application to new and difficult situations. Even if the law is divine law, there must be such a mechanism, and the Torah recognises this and provides for it. It directs that is such difficult questions, the authorities in each age shall determine what to do. This has always been done in Judaism. The most obvious distinction among the movements in Judaism has been their different views of how the law changes."

The ancient rabbis realised that not everything brought before a court would be an open and shut case; some things would be too hard, too difficult. They said that "this shows that Scripture speaks here of an expert judge" (Sifrei 152); even the best judges might find a case too difficult. Who Is ...

Rashi: Rabbi Shlomo Yitzchaki (1040-1105 CE), French rabbi who wrote commentaries on the Torah, the Prophets and the Talmud, lived in Troyes where he founded a yeshiva in 1067; focuses on the plain meaning (p'shat) of the text, although sometimes quite cryptic in his brevity
Rashi suggests that the phrase "matters of contention" indicates that "the sages of the town would be divided about the matter". Onkelos inserts the word 'legal' into the phrase, so that it becomes "matters of legal contention" to emphasise that vigilante justice is unacceptable - everything must follow due process in the court system. This is why What Is ...

Sifrei: An early composite midrash/commentary on B'Midbar and D'varim; probably composed around the time of the Mishna (200CE); known and referenced in the Talmud; the B'Midbar portion from the school of R. Simeon, the D'varim portion from that of R. Akiva
Sifrei says that the phrase "you shall come and arise" means that "you must rise immediately and in court"; the court must stay in session and refer the matter promptly to the Sanhedrin in Jerusalem. Jeffrey Tigay says that, "the judges in the local courts are addressed; they are to bring the case to the high court, just as the chiefs brought difficult cases to Moshe (D'varim 1:16-17)."

The Who Is ...

Sforno: Rabbi Ovadiah Sforno (1470-1550 CE), Italian rabbi, philosopher and physician; born in Cesena, he went to Rome to study medicine; left in 1525 and after some years of travel, settled in Bologna where he founded a yeshiva which he conducted until his death
Sforno tries to separate application from foundation, or perhaps legislation from constitution. He says that, "although you appointed judges for each city so that each court shall judge its city, nevertheless if a doubt arises regarding the traditional teaching, the court of that city shall not decide according to its own deliberation, but the decision shall be made according to the deliberation of the majority of the High Court in Jerusalem." In other words, a local court may judge anything that applies locally, or doesn't affect the Torah itself, but if a question arises which implies that the Torah might be wrong or need changing, then this can only be adjudicated by the Sanhedrin; it is outside the scope of a local court.

It is Rabbi Who Is ...

Hirsch: Rabbi Samson Raphael Hirsch (1808-1888 CE), German rabbi, author and educator; staunch opponent of the Reform movement in Germany and one of the fathers of Orthodox Judaism
Hirsch who points to the normal judicial process - of finding something similar from which principles and application can be drawn to cover a new situation - and says: this is not that. He finds this in the choice of the root and explains that " is a miracle, to designate an event that occurs without any connection with the existing order of things, and completely independent of it, as a pure act of the will of G-d's almighty power. This designates a case for which the functionary can find no connection and analogy with other fixed norms and facts of the Law out of which he could deduce any decision he could make with certainty for this particular case." If no analogies can be found, if there is no case law on which to draw, then this must be a new thing that G-d has created and willed, so a local court is not competent to rule and the matter must be referred to the highest court available.

Today, there seem to be two ways of handling things that are deemed too difficult. One is to develop a culture that doesn't really allow questions; we know what we believe and why, there are no possible grounds for questioning that. The only exceptions are questions from those who haven't understood what they heard the first time around, so are allowed to ask for another explanation of the same thing using slightly different words. This effectively denies the opportunity for theology to advance by questioning and examining previously held beliefs and consensii. It also makes it difficult for people to come into the culture, since part of a normative acculturation process is to ask questions and discover the reasons why things are said and done in the way they are. Changes, which would often be resisted by the majority of believers if given a voice to speak, are brought in from the outside 'world' culture and adopted largely without question - because questions aren't allowed - by leaders who appear to be motivated by the mistaken belief that many people will become believers if the traditional barriers and obstacles to their behaviours and lifestyle choices are removed.

The second current approach to difficult things is to pretend to be an environment where questions may be asked and to answer any that are covered by the standard answers and explanations. Any that fall outside that range are either ignored or firmly shut down on the grounds that we just need to have faith. Questions that inconveniently challenge the culture's choices or directions are deemed to come from people who can't or won't hear from God, are lacking in faith or are subversive or reactionary elements trying to stifle the culture and take it back to the Middle Ages. Difficulties exist of course, say the culture's panegyrists, but with enough faith these can all be overcome. By appealing to G-d in this way, the culture essentially denies its members any opportunity for discussion or debate without being labelled as heretics. After all, who can argue with G-d?. The problem is yours, the culture says to those who doubt the wisdom or biblical grounds for progressive ideas, because you don't trust G-d enough to let Him change His mind about certain things, to come out with His long-held opinions which He had previously withheld because He didn't think the people in previous generations would be able to understand.

Both these approaches try to make changes on the basis that the difficult things were simply hidden from previous generations of leaders and theologians and, now that they have come out, they should be embraced without question. The arbiters of the old process should be held up to public opprobrium for their repressive leadership and failure to recognise that the so-called 'difficult' things are part of God's creative will, requiring new legislation that is totally distinct from what has gone before. Notice also, that both approaches either deal with things on a local basis, by denying the opportunities for appeal to a higher court that could consider the matter on a balanced and experienced basis, or by imposing change from above and denying the local court a way to ask meaningful questions.

At a personal or congregational level, do you engage with difficulties as they arise to try and find an answer that takes proper account of traditional positions and teaching - "the faith which was once for all delivered to the saints" (Jude 3, NASB) - or do you stifle the question and try to shut it down because it is uncomfortable or inconvenient? Do you have some kind of halachic process for examining and testing requests for change that ensures that everything is done with proper order and suitable transparency? Do you have a court of appeal outside your immediate context that must be (or even may be) consulted before rendering difficult decisions or changing fundamental principles, to ensure that everything relevant is taken into consideration and appropriately weighted?

Further Study: Matthew 23:1-3; Luke 5:37-39

Application: How do you make decisions? Do you always involve the Ruach to ensure that you have reached the right conclusions in line with the whole Bible and G-d's will for your life?

19:15 12Aug18 Diana Brown: I do pray first, not as an afterthought. Waiting on the Lord for his answer is what the holy spirit is cultivating in me. Most of us like ready answers. Choices is something we demand as humans yet history shows man hates the angst involved in choosing. Leaders know this and are familiar with the ways to shape our thinking by culture.

Buy your own copy of the Drash Book for Deuteronomy/D'varim now at Amazon US or Amazon UK.

© Jonathan Allen, 2018



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