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Posted on September 6, 2019 (5780) By Rabbi Yitzchok Adlerstein | Series: | Level:

Appoint judges and officers for yourselves in all your cities.[2]

Do not plant an asheirah tree… near the Altar.[3]

A person is situated where his head is. When someone spends considerable time in the mental space of people below his spiritual station, his own ruchniyus is bound to slip.

Dayanim are particularly vulnerable to such slippage. They are instructed (at least initially, before arriving at a verdict) to view the litigants standing before them as evildoers, capable of all sorts of nefarious activities. They are therefore professionally required to creep into the brains of malfeasors, and walk through all the steps of plotting illegal and immoral actions. It is not a particularly elevated place to be! (It is for this reason that Hashem promises, “Elokim stands in the divine assembly; there with the judges he judges.”[4] Hashem stands among the judges in order to protect them from falling in stature when they are forced to insert themselves into the criminal mind.

This was the gist of Yisro’s concern about Moshe, “If you do this – and G-d will command you – then you will be able to endure.”[5] Yisro reasoned that if Moshe spent long hours listening to the corrupt strategies of litigants locked in court battle with each other, he would surely fall from his high spiritual position. He would no longer be capable of serving as the conduit for revealing the Divine Will – of being the human intercessor when “G-d will command it.”

Moshe responded that he believed Yisro’s concerns were ill-founded. “The people come to me to seek G-d.”[6] In other words, the matters that they bring to me may seem to you, Yisro, as petty matters that will pull me down. But this is not necessarily so. When they appear before me, they seek more than monetary relief. They wish to know the Divine Mind. They inquire about G-d’s thoughts. There is more ruchniyus there than you are allowing for!

Yisro was not convinced. “You will certainly become worn out – you and this nation.”[7] The pursuit of pecuniary gain will distort their thinking. It will indeed pull you down to a lower level. This, in turn, will mean that the people as a whole who depend upon you will fall much further.

To an extent, both were correct. The Jewish quest for monetary relief in a court of Law differs from that of other peoples. Moshe is described as a “man of G-d.”[8] Chazal[9] explain that Moshe combined two aspects: his lower half was human, but his upper half was G-dly.

It is important to realize, however, that the entire nation contains within it some aspect of Moshe’s greatness. The people also enjoy aspects of humanity and G-dliness. They can bring ordinary, natural reactions to bear upon a situation, or they can react from a transcendent place. (The performance of mitzvos is a good example. When we perform a mitzvah that we are not commanded about, we do so in response to our human aspect. When we respond to a Divine command, however, we employ our G-dly aspect. This is the preferred – and more elevated – response.) The Bnei Yisrael could conceivably come to court looking for nothing more than another few dollars. But they were capable as well of seeking something more elevated.

The Torah juxtaposes the mitzvah of appointing judges to the transgression of planting an idolatrous asheirah-tree. The point, say Chazal,[10] is that appointing undeserving judges is the equivalent of planting an asheirah-tree. Standing behind this is an important principle. Whenever a person falls from the spiritual level at which he was supposed to function, his very emunah suffers as well. When he loses the higher aspects of his ruchniyus, he loses the deeper insights of his belief at the same time. (Thus, non-Jews are prohibited from practicing idolatry, but they are not prohibited from a belief system in which the Oneness of G-d is diluted by “sharing” His power with some lesser being.[11] Because they are not expected to function on a higher level of connecting with G-d on a purer plane, they are not held accountable for an elevated form of emunah that recognizes His Oneness more deeply, and leaves no room for any “power-sharing” with something less than Divine. Klal Yisrael, however, is expected to live on a higher plane than others – and is therefore given a mandate for maintaining a more profound form of emunah.)

The promise of “Elokim stands in the divine assembly” is not vouchsafed to the undeserving dayan. His involvement with the small-mindedness and pettiness of the litigants sometimes continues to drag his inner life to lower places. In turn, his very emunah slips as well, until what is left resembles an idolatrous asheirah-tree.

We see here how important it is to keep one’s mental space free of anything beneath one’s spiritual level – all the more so, anything inappropriate. Failure to do proper housekeeping there results not only in a loss of spiritual attainment, but even compromises one’s emunah.

  1. Based on Mei Marom by R. Yaakov Moshe Charlop, Devarim, Maamar 32:1
  2. Devarim 16:18
  3. Devarim 16:21
  4. Tehillim 82:1
  5. Shemos 18:23
  6. Shemos 18:15
  7. Shemos 18:18
  8. Devarim 33:1
  9. Devarim Rabbah 11:4
  10. Sanhedrin 7B
  11. This assertion is the subject of much earlier controversy. The mechaber here follows the opinion of the Rema in Darchei Moshe, Orach Chaim 156