THE ISSUE OF THE DECREES OF MOSHE

 Taken from a shiur by Rav Yoseif Dov Soloveitchik in Shiurim L'Zecher Avi Mori z"l

 

At the begin of the chapters of the Laws of Prayer that deal with the reading of the Torah, Rambam writes (Hil. Tefilah 12:1) that "Moshe established for the Jews that they should read from the Torah in public on Shabbat, Monday, and Thursday in the morning so that they should not go three days without hearing Torah." This law is based on the gemara in Bava Kamma 82a, which states that Ezra established the public reading of the Torah on Mondays and Thursdays. However, asks the gemara, do we not know that this practice was established long before Ezra (who lived at the beginning of the Second Temple era)? As it is written "they (the Jews) traveled for three days and did not find water" (Shemot 15:22). The Sages interpret this verse to mean that water means Torah, and as soon as the Jews went three days in the desert without Torah, their faith and resolve weakened. To rectify this problem, the prophets among them stood up and decreed that they should read form the Torah on Shabbat, Monday, and Thursday. 

One interesting thing in this gemara is that it does not actually mention Moshe by name, but rather refers only to "the prophets among" the Jewish people. While that would seem to include Aharon and Miriam as well, Rambam takes the liberty of limiting the reference to Moshe alone. Why does he do this? The Kesef Mishne asks this question and answers that since Moshe was the greatest of the prophets at this time and the other prophets were part of his court and thus did not act without his approval, it is thus fitting that he be given the credit for this decree.

With regard to the status of Moshe, we have two parshiyot in the Torah. In Shemot 18:22-26, we are told that Yitro advised Moshe that the judges on lower courts should judge the people, and only the more difficult and more important issues should be brought to Moshe himself. These verses are seen as proof that Moshe served in the place of the entire Sanhedrin of 71 men. In fact, the gemara in Sanhedrin 16a learns from here that a kohein gadol (high priest) may only be judged by the Sanhedrin of 71, and Rashi there notes that the gemara is considering Moshe to be equivalent to that entire legal body. (a further proof is brought from the mishna in Sanhedrin 16b)

The parasha in B'ha'alotcha (Bamidbar 11:16) seems to offer a different view. There Hashem commands Moshe to gather seventy men to serve as his assistants in leading the people. The mishna in Sanhedrin (2a) comments on this that the Sanhedrin was made up of seventy people with Moshe as the leader. As such, it seems not that Moshe served in place of the Sanhedrin, but rather as its head. If he were to be equivalent to the entire Sanhedrin, then there would be no need to appoint another such body! Rambam seems to follow this second approach in Hilchot Sanhedrin 1:3, when he writes that the head of the Sanhedrin that sat in later times served in place of Moshe! At any rate, how are we to solve this contradiction between the verses?

This contradiction exists in Rambam as well. We have already noted that Rambam sees Moshe as being the head of the Sanhedrin. However, in Hilchot Aveilut 1:1 he states that Moshe established the seven days of mourning and the seven days of sheva berachot, without mentioning Moshe's court! Similarly, by the reading of the Torah, Rambam makes reference to Moshe, but not to any other body of individuals that was involved in the establishment of this law.

Stepping back for a moment, we should note the curiosity that accompanies the phrase "Moshe and his court." We know that Moshe was the greatest of all prophets and was considered to be the human being mist trusted by Hashem (Bamidbar 12:7). The one time his authority was challenged, in the Korach incident, his opponents met with gruesome death. As such, it does not seem fitting that he should be part of a body whose activities involved debate and dissension. How could anyone ever disagree with Moshe? How could Moshe ever have to rely on the consent of a court outside of himself?

Our answer begins by understanding that there are two roles that a bet din (Jewish court) can fill. One is the role of halachic decisor and teacher. As Rambam writes in Hilchot Mamrim 1:1, the Sanhedrin that sat in Jerusalem was the "pillar of teaching and from them law and justice went out to all of Israel." In this role, it is impossible to conceive of Moshe having any equal or colleague. He was simply in a class by himself. However, there is a second role that a bet din could fill, and that is the role of establishing facts. A bet din is needed to witness and validate a chalitza ceremony or a conversion process, but their presence their is not needed due to their expertise, but rather because we need to have a valid bet din on hand to approve the proceedings and give them legal force.

This distinction applies even within the Sanhedrin of 71 itself. A full Sanhedrin is needed to appoint a king or a kohein gadol, yet they are needed there not as decisors but rather as an official body overseeing the act. With regard to these types of actions, Moshe was able to join with a larger body, since his greatness was not such that he could act alone in such instances. His special status derived from his being the leader of the Jewish people, and with regard to teaching it was impossible that anyone should argue against him. However, with regard to formal actions of the Sanhedrin, Moshe assumed the role not of the Sanhedrin itself, but as its leader. We can thus understand the contradiction in the Torah. The section in Shemot speaks about Moshe as a judge, and thus he could serve alone, while the section in Bamidbar speaks about a bet din that oversees the people, and thus Moshe plays the role of the head of the court.

There is also a third role for the Sanhedrin, and that is the caretakers of the well being of the nation. Rashi in B'ha'alotcha tells us that the seventy men chosen to be on the original Sanhedrin had been taskmasters over their brethren in Egypt and had themselves been beaten by the Egyptians for defending the Jews. Such was the character of those eventually chosen to sit in judgment over the Jews.

The appointment of Yehoshua (Joshua) to replace Moshe was twofold. First, he was chosen to succeed Moshe as the transmitter of the tradition. Rambam, in his introduction to his Code notes that even though Pinchas heard the Torah from Moshe himself, he had to hear it again from Yehoshua in order to assume his place in the chain of tradition. This role was not merely an appointment, but a sanctification of Yehoshua himself. No bet din could make such a move. Only Moshe, in his role as the receiver of the Torah, could bestow upon another person this status. Moshe's cohorts on the Sanhedrin had to now hear the Torah again from Yehoshua. On the other hand, Yehoshua was also given the status of a king (or some analogue of a king). This is a role that is rooted not in teaching and transmission, but in establishing facts and acts of court. With regard to this law, it is thus fitting that Rambam invokes the phrase "Moshe and his bet din," since Moshe could not bestow this title by himself.

However, all is not well. The gemara in Sanhedrin 16b states that courts are set up in the tribes by the Sanhedrin of 71. This law is learned from the fact that Moshe set up courts, and he himself serves in place of the Sanhedrin. However, this case seems to be one of mere action and not of teaching, and thus, according to what we have developed, we would expect to see Moshe here serving not in place of the Sanhedrin but rather at the head of it!

It appears that there is a difference between the appoint of a king and the appointing of a court. While the former is a political appointment and falls under the category of an act of court, the latter entails an elevation of the new judge to a level where he is now empowered and entrusted with, among other things, the judging of capital cases. So long as a person has not been appointed to serve on a court of twenty three people, and thus has not been deemed eligible to judge capital cases, there is a lacking in his overall fitness as a teacher. His appointment to the higher court not only signals a change in job, but a change in himself as well.

In light of what we have developed, it is possible to now explain why Rambam credits Moshe alone with the decree about reading the Torah, and ignores the gemara's attribution of this act to "the prophets among" the Jewish people. According to the gemara in Bava Kamma, this decree was made after the splitting of the Reed Sea and before the giving of the Torah. The status of Moshe was elevated tremendously once the Torah was given, and his selection was a function of the giving of the Torah. Thus, any decrees made after that point were made by him alone. However, any decree made before the Torah was given was made not only by Moshe, but also by the other prophets at that time. He was the greatest among them, but there was as yet no problem with disagreeing with him.

This explains the gemara, but why does Rambam make the shift? Going back to the beginning of Hilchot Aveilut, it is strange that Rambam attributes the seven day period of mourning to Moshe the Torah itself tells us that Yoseif mourned for seven days when his father, Yaakov, died! What we have to understand here is the concept that when the Torah was given, all laws were renewed. Any decrees or laws that were made before the Torah was given were cancelled, and only a new ordinance by Moshe brought them back into existence. As such, even though the gemara in Berachot 26b states that the forefathers established the daily prayers, Rambam does not include this gemara in his laws of prayer, but rather makes a passing reference to it in his Hilchot Melachim 9:1 when discussing the fact that laws were renewed at Sinai. Even further, Rambam dispenses with the gemara's phrasing that the forefather "established" the prayers, and writes merely that they were the first to pray at various times during the day. The force of Moshe and the Torah overpowered that of his predecessors.

The same can be posited with regard to the reading of the Torah during the week. The decree to read the Torah thrice weekly was not strong enough to continue to stand on its own once the Torah had been given; it needed to be re-established. However, after the Torah had been given, the other prophets were no longer able to take part in the process, since Moshe now stood alone. Thus Rambam, who is concerned not with the ancient development of halacha but rather with halacha as it currently exists, omits the role of the other prophets in this law, and pins all of the credit on Moshe himself, as he does by the laws of mourning.

 

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