Drash Yitro 5769: Jethro’s Gift of the Courts.

The Ten Commandments are not the most important part of this week’s portion in my mind. While most will remember this portion for the preliminary smoke and fire and the recitation of the Ten Commandments by God, there is something far more significant. While moving towards Sinai, Moses’ father in law Yitro catches up with the Israelites bringing Moses’ sons Gershon and Eleazar and wife Tzipporah with him.
Yitro notices the long line of people that want to talk to Moses and ask for judgment in one kind of case or another. Moses looks totally frazzled by the long lines, and Yitro begins to notice the people on the line are not too happy either. Yitro pulls over his son-in-law and gives some sagely advice:

19. Listen now to my voice, I will give you counsel, and God shall be with you; Represent the people before God, that you may bring the causes to God; 20. And you shall teach them ordinances and laws, and shall show them the way where they must walk, and the work that they must do. 21. And you shall choose out of all the people able men, such as fear God, men of truth, hating unjust gain; and place such over them, to be rulers of thousands, and rulers of hundreds, rulers of fifties, and rulers of tens; 22. And let them judge the people at all seasons; and it shall be, that every great matter they shall bring to you, but every small matter they shall judge; so it shall be easier for yourself, and they shall bear the burden with you.

Moses enacts this system, creating a judicial bureaucracy. However it alone does not go far enough. As we will read in Numbers, Moses burns out over a second complaint about the food:

14. I am not able to carry all this people alone, because it is too heavy for me. 15. And if you deal thus with me, kill me, I pray you, at once, if I have found favor in your sight; and let me not see my wretchedness. [Numbers 11]

God then creates one more council, a court of seventy elders along with Moses to deal with the bigger issues Moses cannot do alone.
Rabbinic law changed and transformed this system, but the judicial system became the backbone of an entire order of the Talmud: Nezikin. In one of its tractates Sanhedrin, the organization and operation of the courts is discussed:

Monetary cases [must be adjudicated] by three judges… capital cases are adjudicated by twenty-three…a tribe, a false prophet and a high priest can only be tried by a court of seventy-one. War of free choice can be waged only by the authority of a court of seventy-one.[M. Sanhedrin 1]

Unlike the system of population to decide cases this system is based on the type of litigation. Interestingly, all three courts have a prime number of judges, there is no way any set of parties could have an even split. There can be no hung juries, even by multiple factions. What is also clear is that for capital cases and more important national matters the courts are so large they would have a hard time convicting anybody where there is the slightest doubt, as deliberation would go on forever. Indeed in capital cases this is made explicit in Tractate Makkot:

A Sanhedrin that effects an execution once in seven years is branded a destructive tribunal; R. Eliezer b. Azariah says, once in seventy years. [Makkot 7a]

This is despite the huge number of capital crimes found in the Torah. These even include several of the Ten Commandments such as murder, desecrating the Sabbath and insulting one’s parents, all of which should be relatively easy to find people guilty of. Yet very few are convicted, because of the court procedure in such cases, with a few exceptions, is not directly noted in Torah. Human beings, namely Rabbis and Judges came up with the system of jurisprudence found in Tractate Sanhedrin that made it near impossible to enact capital punishment.
This is the gift Yitro gave us before the revelation at Sinai. While Mitzvot are of Divine origin, how we implement them is a very human thing, requiring a very human process of questioning and finding solutions to dilemmas using a system of debate. This is core to what we might call Jewish thinking. It is not just Mitzvot that we follow, but the Halakhah, the derived rules that our ancestors debated and found, and the Halalka we derirve today and that our descendants will derive in the future. The Oral law may have been given at Sinai as well, but it has been adapted many times over millennia for new circumstances. The Oral law is never closed, never complete.
What Yitro did in suggesting to Moses was far more than delegation. In Egypt, Pharaoh’s word was absolute, and the slaves obeyed or were punished, On the way to Sinai, Moses’ word was absolute, because the people had no one else, and thus followed the Pharaoh model. What Yitro did was change everyone’s thinking from one person dictating policy, to ten percent of the population deciding its formation, and all the people able to ask questions to create the conditions for change. All of this was based on the original framework of Mitzvot in Torah. For former slaves this might have been a near impossible task, but the existence of order Nezikin proves that it was a successful one. While it is not the democracy of the Greeks it is democracy nonetheless: it is a democracy founded not in legislation, but in jurisprudence. For one of the minority religions on the planet, the assumptions behind that system have let Jews survive for thousands of years all over the globe, being one of the oldest continuous religions on the planet, constantly adapting to new conditions when necessary.
It builds on the system of God’s partnership with humanity, Mitzvot and Miracles are the realm of God, and God’s participation in this world. We through Halakhah and Aggadah contribute to creation, filling the gaps left by God in Torah for us to fill. This was not revealed at the top of Sinai by God, but by Moses’ father in law at the foot of the mountain, a gift we should be eternally grateful for.