In addition to setting out the regulations pertaining to the functioning of the judicial system, this week’s Torah reading contains a directive concerning the following situation: “If there arise a matter too hard for thee in judgment” (Deuteronomy 17:8). In such circumstances, it is written, a person must turn to the “judge that shall be in those days” (Deut. 17:9). Concerning this verse, Rabbi Yossi the Galilean asks in the Tannaitic midrash: “Would you ever imagine going to a judge who is not in your day (that is, who does not preside during your era)? However, this verse is referring to a judge who is competent and esteemed by the public in your day. As King Solomon says in Ecclesiastes: ‘Say not thou: “How was it that the former days were better than these?” for it is not out of wisdom that thou inquirest concerning this’ (Ecclesiastes 7:10)” (Sifre on Deuteronomy, paragraph 153).
Deuteronomy is a conservative book that aims to permanently establish the judicial context for future generations, including rulings that will never be affected by claims of irrelevance or of a need for change. The judge to whom a person must turn is the one who hands down rulings during that person’s lifetime, and it is forbidden to say that such a judge is not as good as the one of yesteryear. The serious tradition of justice is to be maintained, and its character will not be affected by the varying quality of the ones carrying it.
The basis for any change in life is abandonment of the old, and abandonment of the old takes place when the old and the new are not suited to one another. Thus, Deuteronomy deliberately emphasizes that whenever a legal problem arises, one must go to the “judge that shall be in those days.” The times do not change, however, and today’s judge is the same as the judge of yesteryear; thus, one must not hand down a decision based on individual circumstances per se, but must instead rely on ancient tradition and established law and order.
In light of the above, it is clearly understood why Rabbi Yossi the Galilean mentions a verse from Ecclesiastes. Like Deuteronomy, Ecclesiastes is a conservative book, as it is written: “Vanity of vanities, saith Koheleth [Ecclesiastes]; vanity of vanities, all is vanity. What profit hath man of all his labour wherein he laboureth under the sun? One generation passeth away, and another generation cometh; and the earth abideth for ever” (Eccl. 1:2-4).
According to this source, what happened in the past will also occur in the future; there is nothing new under the sun. Thus, one cannot say the “former days were better than these.” Whereas the source of nostalgia is an assumption that change does take place and that the world can deteriorate, for example − Ecclesiastes argues that just as the world’s situation cannot get any worse, it also cannot improve. One must go to the “judge that shall be in those days” because there is no difference between that person and a judge who lived many years earlier. Rabbi Yossi the Galilean cites Ecclesiastes (the book) because he sees it as an illustration of Deuteronomy. There is, however, a difference between the two books’ approaches.
According to Deuteronomy, “All this word which I command you, that shall ye observe to do; thou shalt not add thereto, nor diminish from it ... After the Lord your God shall ye walk, and him shall ye fear, and his commandments shall ye keep, and unto his voice shall ye hearken, and him shall ye serve, and unto him shall ye cleave” (Deut. 13:1-5). One must not add anything to or subtract anything from the commandments, for if a person changes anything, he or she might also be changed. If, for example, a person adds a fifth species to the four that are used on the Festival of Sukkot (lulav, etrog, myrrh and willow branches) − a commandment will have been changed.
An individual who wants to abolish the Day of Atonement or the Sabbath has the power to do so. Indeed, Deuteronomy’s ideological conservatism, to which Orthodox Judaism owes so much, stems from the profound belief that a person has the potential to change reality − but will not exploit it. For an individual must be loyal to God, because only loyalty and fear of the Almighty will motivate him to keep God’s commandments intact.
However, that is not Ecclesiastes’ approach. In what could be described as a midrash on the above verse from Deuteronomy, Ecclesiastes states, “I know that, whatsoever God doeth, it shall be for ever; nothing can be added to it, nor any thing taken from it; and God hath so made it, that men should fear before him” (Eccl. 3:14). Whereas Deuteronomy opens with the directive, “All this word which I command you, that shall ye observe to do” − Ecclesiastes declares, “I know that, whatsoever God doeth, it shall be for ever,” thus implicitly stating that, in any case, it is impossible to change anything in this world. Deuteronomy declares, “thou shalt not add thereto, nor diminish from it.” By contrast, Ecclesiastes does not state that a person is prohibited from changing anything; instead, it declares categorically that all change is impossible. Ecclesiastes presents an extremely deterministic world in which there is no possibility whatsoever of changing anything or of creating something new.
As a kind of postscript to the commandments it describes, Deuteronomy instructs people to fear God and to adhere to his ways. For its part, Ecclesiastes states the following: “and God hath so made it, that men should fear before him.” In other words, according to the latter book, not only is it impossible to add to or take away something from that which exists: It is impossible even to choose between fearing God and not fearing him.
In contrast with the Talmudic aphorism − “Everything is in heaven’s hands (that is, God’s hands) except the fear of heaven (that is, the fear of God)” (Babylonian Talmud, Tractate Berachot, p. 33b) − Ecclesiastes claims that even the fear of God has been created by God himself: “and God hath so made it, that men should fear before him.” God, rather than man, has made this so.
Is the verse in Ecclesiastes cited by Rabbi Yossi the Galilean a good explanation for why a person should avail himself of the “judge that shall be in those days”? At a basic level, the answer is yes: One should turn to a judge who rules during one’s own lifetime, because it is forbidden to say that “former days were better than these.” But what Deuteronomy considers to be a real threat to tradition seems to be mere foolishness in Ecclesiastes. According to the former book, one must turn to the “judge that shall be in those days,” because if one doubts the competence of later judges, tradition will be doomed. However, for Ecclesiastes, “it is not out of wisdom that thou inquirest concerning this.” That is, the assumption that judges today are worse than those of the past is utter foolishness since nothing is new under the sun.
Contrary to the views of some scholars, the last verses of Ecclesiastes might thus be accepted as the only conclusion that can be drawn from this book’s existentialist world view: “The end of the matter, all having been heard: fear God, and keep his commandments; for this is the whole man. For God shall bring every work into the judgment concerning every hidden thing, whether it be good or whether it be evil” (Eccl. 12:13-14).
The legal system cannot verify whether a person has performed all of his tasks properly − only God himself can “bring every work into the judgment.” The only choices that will affect the judgment will be the Almighty’s, not man’s; even the system of justice is deterministic in nature. Thus, the imperative to “fear God, and keep his commandments” is misleading. In Ecclesiastes, there cannot be a commandment in the same sense that there can be a commandment in Deuteronomy, for the former states categorically that this is the “end of the matter” − i.e., not something that is negotiable. The fear of God and performance of his commandments is not a matter of choosing good: There is no other response.