If a case is too baffling for you to decide, be it a controversy over homicide, civil law, or assault—matters of dispute in your courts—you shall promptly repair to the place that your God the Lord will have chosen, and appear before the levitical priests, or the magistrate in charge at the time, and present your problem…(Deuteronomy 17:8-9)
Those nations that you are about to dispossess do indeed resort to soothsayers and augurs; to you, however, your God the Lord has not assigned the like. (Deuteronomy 18:14)
Rabbi Abba said in the name of Shmuel, For three years, the House of Hillel and the House of Shammai argued. One said, ‘The halakha is like us,’ and the other said, ‘The halakha is like us.’ A heavenly voice spoke: “These and these are the words of the living God, and the halakha is like the House of Hillel.” (Eruvin 14b)
How should we settle difficult cases? This is a legal and judicial problem, but it is also an extra-legal and extra-judicial problem. Can the law handle hard cases? What should judges do if they don’t have an answer? What should a society do when there is no template for the problem at hand? Some commentators suggest that the Torah is instructing us only about the need for a Supreme Court—when local courts are caught in deadlock escalate to the Sanhedrin. But why should the Supreme Court be exempt from cases that are “too baffling to decide”? What makes a case too baffling to decide?
Following the Torah’s declaration that the priest or magistrate decide the insoluble case, we are introduced to the laws of kingship. In a way, the text foreshadows the succession of judges by kings—when judgment falters, kings arise. Where one cannot know the answer with conviction, one brings in a king—not too find the truth, but simply to find a way forward.
Priests fulfill a peace-keeping role, suggesting that the priest’s decision in the hard case is not about adjudication, but mediation. The priest does not know who is right, but finds a practical solution. In court, both parties seek to win—it’s zero sum. But perhaps in a hard case, the priest finds a way for both to win and both to lose, i.e., compromise. We don’t know, but the text tells us we need to accept the priest’s authority. One could argue the priest has access to a divine answer, but I prefer a more earthly read—the priest cannot solve Schrödinger’s Cat—cannot know who is guilty, and who innocent; only how to help us live with uncertainty. This text parallels the function of the priest in the case of the Sotah (woman suspected of adultery)—the priest does not rule. The truth of the matter is hidden. There are no witness, no evidence. Rather, the priest works in the cracks of the law.
The king is introduced to us as a priestly figure—we appoint a king to solve our need for a meta-adjudicator in the absence of evidence and certainty. The job of the king is to comfort us not with a theoretically pure view, but with a political solution. Hence, the king and priest are distinguished from the judge.
They are also distinguished from the augur and soothsayer—whom we are forbidden from consulting. Here is the most radical way to render the contrast: the augur and soothsayer are not necessarily wrong on the facts, but their methodology is wrong as a matter of epistemology and ethics. They procure their knowledge in a way that is untoward and/or they foment a social world in which they are seen as laying claim to divine knowledge. The Torah intimates that we live in a world of uncertainty and bafflement, and that in such circumstances, our goal is not to manufacture certainty, but to cope with our limitations. Most cases aren’t hard. But when we hit a hard case, we should consult priests and kings, not sorcerers and diviners. The former focus on compromise and peace, the latter on zero-sum ultimatums. The allure of the sorcerer is the promise of simplifying the complex, smoothing the difficult. The Torah instructs us to let the complex remain so.
The notion that we live in a world of uncertainty and bafflement is expressed in a famous Talmudic passage about Hillel and Shammai. Both sides were right in principle, yet practicality required one side to win. Hillel becomes the priest and the king—we follow him not because his opponent is wrong, but because we have to pick someone to follow. Yet he also wins authority through ethical appeal. Hillel, like the priest, maintains a peaceful disposition as compared to his rival. Shammai is not a soothsayer, but his conviction has elements of the diviner. Hillel is more dialogical, attempting to integrate the arguments of Shammai in his own, even as he rejects them.
Our parasha is about both procedural and substantive justice—and the tension between them—but it’s also about the stubborn fact that some issues are grey, neither right nor wrong, kosher nor unkosher. Read expansively, the category of the case too baffling to decide is a reminder that there areas in our live where a judge or representative of the law is not helpful. Opening the Shulchan Arukh might get the conversation started, but it won’t tell us what to do. Russ Roberts describes these cases as Wild Problems. These are cases that are impossible to undo. They are also cases that can’t be tested via scientific experiment. They are life-decisions that make you who you are.
Going to a soothsayer means trying to avoid “the hard thing about hard things.” It means trying to outsource existential responsibility for your own life decisions. It means seeking certainty where certainty is an inappropriate objective. Idolatrous religions deify those humans who have or project certainty. Judaism elevates but does not deify those leaders who humbly recognize their own limits. The priest and king represent the promise of conviction in the face of not-knowing. The laws of kingship serve to moderate the king, reminding him that he is not a god, but only a public servant whose task is to provide practical guidance under conditions of not-knowing.
As Moses prepares us for the Promised Land and for a tradition that must remain flexible, he indicates that it’s normal and good to have cases that are baffling. When we do, we must seek an earthly, practical solution even as we know that the truth is God’s alone.
Shabbat Shalom,
Zohar Atkins