Deborah, part one

The Honorable Robert H Henry, Judge of the US Court of Appeals for the Tenth Circuit (1994-2010) posed a big question that got me thinking and researching: "What do we make of Deborah, whose story is told in the biblical Book of Judges?"

I sensed his interest in Deborah's juridical role, but noted that she is introduced as a prophet and a wife, then as a judge, before she finally emerges as a general and poet! But what is the significance of the repeated reference to her judging and issuing judgments in these opening verses? This image of Deborah seems intentionally to recall the image of Moses sitting to issue legal judgments to his people:

What are the similarities and differences in their roles?

I love Biblical Hebrew, so I begin with my favorite companion, Mandelkern's Biblical Concordance. The Hebrew root SH-F-T שפט - found above v.4 in shoftah (judging) and v.5, mishpat (judgment) shows up frequently in the Pentateuch in different contexts that suggest an evolution in the word's meaning.

Judgment in Genesis
I was surprised to rediscover that the very first appearance of the Hebrew root SH-F-T is in Genesis 16:5, when Sarai (later Sarah) invokes God to arbitrate a domestic dispute. At issue is not a matter of law, but a matter of fairness.

Similarly, a few chapters later in Genesis 18, as God sets the stage for dialogue with Abraham about the imminent destruction of Sodom and Gomorrah, the word mishpat (judgment) again resonates with a sense of fairness.

Note the juxtaposition of two concepts, tzedakah (righteousness) and mishpat (judgment;) it sounds as if the terms are - at this stage - almost synonymous. Indeed, Abraham will challenge God's fairness in these stunning verses:

This usage of SH-F-T as "appeal to general principles of fairness and righteousness" is also echoed in the indignation of the citizens of Sodom, as they confront Lot:

Finally, in Genesis 31:53, Laban invokes the God of Abraham and the god of Nahor to judge (arbitrate) any disputes that may arise between them in the future:

In summary, my sense of the usage of the root SH-F-T in Genesis is that it evokes application of an innate sense of fairness and morality that has not yet been codified into a law-code.

Judgment in the early chapters of Exodus:
Exodus begins with this sense that judging is an art performed by a person of moral awareness. In 2:14, Moses intervenes in a quarrel between Israelites and is brought up short for imposing his own subjective sense of fairness upon them:

So far, these words from the common root SH-F-T have all felt subjective, as distinct from the mishpatim (laws) of the later code. There is also a unique form of the word (sh'fatim) used to describe the Divine Judgment that God will mete out against the Egyptians, and it, too, has little to do with laws:

Jethro and Sinai
Then everything changes when Moses' father-in-law Jethro visits the Israelite camp (Ex 18) and finds Moses adjudicating legal cases as the nation's sole arbiter of civil disputes (this is the text cited near the beginning of this essay.) Though we read of this visit before we read of the Revelation at Sinai (Ex 19,) the Jethro story seems to assume that a law code already exists, suggesting that the episode is out of chronological sequence. The sages argue; let's leave that topic for a different study and pick up when:

Jethro is appalled (Ex 18:17ff) and urges establishment of a court system based on a legal code:

Note the sequence: first, Moses as Lawgiver will "make known" to the people a fairly comprehensive law code; only then will he appoint judges and magistrates to apply that law to specific cases while having them refer the most difficult cases back to himself. In a few notable stories in the Book of Numbers Moses models this judicial hierarchy by himself turning to God for specific instruction in difficult legal situations (second Passover in 9:7; the gatherer of sticks in 15:34; the daughters of Tzelofhad in 27:5.)

From the time of Jethro and the Revelation at Sinai, we find that the term mishpat (justice) evolves from case-by-case decisions rendered by a shofet (judge) towards a code of mishpatim (laws) which are a set of general casuistic guidelines ("if x occurs, then you shall do y,") similar to the language of the Code of Hammurabi.

The first significant tranche of this legal code is set out in Exodus chapters 21-23 which contains more than 50 discrete mishpatim (laws.) Many more laws will follow in Leviticus (though words from the SH-F-T root are rare) more in Numbers, and many more in Deuteronomy. Between civil and ritual legislation, the early rabbis count 613 commandments (including laws and statutes) in the Five Books of Moses.

Significantly, Deuteronomy highlights the importance of the shoftim (judges) in determining the law, and perhaps more importantly an insistence that the People comply with the rule of law as determined by the judges:

In summary, Moses begins his judicial career trying to apply his sense of right and wrong, which may be prophetic but will be grossly inadequate as his legacy for future generations. With the guidance of his father-in-law (plus a lot of Divinely inspired laws!) he establishes a novel form of governance: not anarchy, not democracy, not theocracy, not monarchy, but a "nomocracy," a society governed by Nomos, Law, as interpreted and reinterpreted through the generations. A quick checklist of the perils of the paths not chosen:

1. Anarchy: Moses describes the scene of the Golden Calf episode as chaotic (Ex 32:25) similar to the final verse of the Book of Judges:

2. Democracy has its own perils if the popular sentiment contravenes the Divine Plan:

3. Theocratic rule ("YHWH is your king") would be the ideal if the voice/ will of God could be easily discerned, but alas it must be mediated through either prophets or priests. Jewish history is sullied by false prophets (as described in Jeremiah 23:16) and later by the corrupted High Priesthood of the late Second Temple Period. Many rulers claim to speak in the Voice of God; we have grown skeptical over the ages.

4. Monarchy in Israel begins as an acquiescence to a perceived need for coherent leadership. In the Book of Judges,

Though the prophet Samuel warns the People of the excesses of monarchs (I Sam. 8:5ff) God is portrayed as acquiescing to their demand to "give us a King." We find in Deuteronomy a vision of what we might describe as limited monarchy:

In reality, the third king of Israel was already amassing wealth and horses and treaty-wives who brought along their household idols, and the monarchs of the Books of Kings offer at best a cautionary tale. Thus, when contemporary Jews pray for a restoration of the Davidic dynasty, it is a hope for an idealized limited monarchy in the context of almost 2,000 years of success as a nomocracy.

Nomocracy is the rule of law
After the Exodus, the People of Israel were ruled by Moses, who was a combination of a prophet, a military leader (vs. Pharaoh,) a poet (the Song at the Sea,) a judge (as above,) and ultimately as the law-giver par excellence. And yet, he is known in the Rabbinic Tradition (Mishna, Talmud, Codes, and to this day) as Moshe rabbeinu, Moses our teacher, the one who instructed us in the art of crafting an evolving legal tradition from an original corpus of laws and precedents.

Since the destruction of the Second Temple (in the year 70 of the Common Era) the Jewish communities that survived were those that endured as nomocracies, with local authorities determining law and practice for local application as the world has continued to change ("is it permissible to purchase diamonds from a conflict zone?" "Ask your rabbi, who will make the determination based on a chain of traditional texts that touch upon the issues raised by your question.")

After Moses
Moses is a prophet, a lawgiver, a judge, a political leader, but not a king whose progeny succeed him on a throne. At God's direction, we see him pass on his mantle of authority to Joshua, who is a different sort of leader.

In the Book of Joshua, there is occasional formulaic reference to "elders, officials, and judges" (8:33, 23:2, 24:1) and one reference to the unintentional manslayer standing for sentence (literally: "judgment") before the assembly, but the root SH-F-T appears only rarely. And Joshua appoints no successor before his death.

A period of chaos follows, during which the Tribes attempt to settle in their allotted lands but are thwarted by their lack of allegiance to God or to one another. As they descend into idolatry and subjugation to their enemies, God tries to intervene, but the People repeatedly fail to respond.

The stage is set for a "second Moses" to lead the nation from the chaos of subjugation towards the distant light of Redemption.

Enter Deborah, in our next exciting essay!