Judaism has long valued attribution and respect for Intellectual Property. Any student of the oral tradition (Mishna, Talmud, Midrashic literature) knows the lengths to which our scholars go to correctly identify their sources.
The Talmud even argues that offering one’s source can bring ultimate salvation. kol ha’omer davar b’shem omro, mevi geula l’olam – “whoever says something in the name of the one who said it [first], brings redemption to the world (or, gains eternal life).”[ia]
Jethro is credited with providing a common sense hierarchy and organizational tree for the Judicial Branch. In fact, a whole section of the weekly torah readings is named after Jethro. This is extraordinary given that this same weekly portion contains the Ten Commandments …. but it is Jethro who gets top billing. Read the text:
And Jethro, the priest of Midian, Moses’ father-in-law, heard of all that God had done for Moses and for Israel His people; that the Lord had brought Israel out of Egypt.” ….. And Jethro said, “Blessed be the Lord, who has delivered you out of the hand of the Egyptians and out of the hand of Pharaoh, and who has delivered the people from under the hand of the Egyptians.…Then Jethro, Moses’ father-in-law, took a burnt offering and other sacrifices to offer to God.”.…. And so it was, on the next day, that Moses sat to judge the people; and the people stood before Moses from morning until evening. So when Moses’ father-in-law saw all that he did for the people, he said, “What is this thing that you are doing for the people? Why do you alone sit, and all the people stand before you from morning until evening?” …. “The thing that you do is not good. Both you and these people who are with you will surely wear yourselves out. For this thing is too much for you; you are not able to perform it by yourself. Listen now to my voice; I will give you counsel, and God will be with you: …. you shall select from all the people able men, such as fear God, men of truth, hating covetousness; and place such over them to be rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens. And let them judge the people at all times. Then it will be that every great matter they shall bring to you, but every small matter they themselves shall judge. So it will be easier for you, for they will bear the burden with you. If you do this thing, and God so commands you, then you will be able to endure, and all this people will also go to their place in peace. Exodus 18 1 – 23
At least as regards the structure of the Judiciary Branch, the Torah does not suffer from a Not Invented Here mentality and for that it distinguishes itself from many ideologies and idialogues… But a careful reading of the text reveals that Jethro is used to introduce more than just a pre-existent or pagan system of courts incorporated into the Divine Law. Note that Jethro also “took a burnt offering and other sacrifices to offer to God”. As the Etz Hayim commentary correctly notes: “These are the two main types of sacrifices offered in ancient Israel. The first, olah, was wholly consumed by fire on the alter as a tribute to God; the second, zevah, was partially offered up, and the major portion eaten at a festive meal.” So the Torah, in suggesting that much of the laws to follow were “borrowed” from the existing culture and religion of the day, does not limit itself to Judiciary reform… it includes also the ritual law, including the sacrosanct priestly code of the temple and it’s sacrifices.
This is a radical thesis… to say the least. It is one thing to say that the Torah was open to some practical input regarding the structure of the judiciary.. it is quite another to say that the Torah borrowed its core rituals and laws of purity from the local practices of the ancient Near East. Far be it from me, your friendly blogger, to be so audacious. For this, I go to a higher authority… Moses Maimonides in his classic work The Guide for the Perplexed.[i]
The Hebrew word for Perplexed – Nevuchim) first appears in the Torah in the mouth of Pharaoh… Exodus 14:3 who sees that the Jews look confused and perplexed… and are living up to their latter appellation of Wandering Jews…
And Pharaoh will say of the children of Israel: They are perplexed in the land, the wilderness hath shut them in.
וְאָמַר פַּרְעֹה לִבְנֵי יִשְׂרָאֵל, נְבֻכִים הֵם בָּאָרֶץ; סָגַר עֲלֵיהֶם, הַמִּדְבָּר.
Buried in Part III, chapter 32 of The Guide, Maimonides makes a radical suggestion (quoted in full in the footnote[ii]); namely that all the laws of the Temple and Priesthood are only borrowed conventions, designed to move his Chosen People and humanity in a new direction. Maimonides calls this a “gracious ruse” a concept perhaps borrowed from the second-century-C.E. philosopher Alexander of Aphrodisias who developed the theory of divine condescendence (Greek synkatabasis; cf. Arabic talattuf)[iii] where God, in His Torah, not only “speaks in the language of man” but also legislates using existing social norms and customs, as limited as they may be. Similar to the Lurianic Kabbalistic concept of contraction (Tzimzum), God and His Torah, so to speak, descends into the muck of the crooked timber of humanity to enrich the human condition.
Even rituals such as fasting, tzizit, mezuzah, tefillin, supplications, prayers and similar kinds of worship… even the festivals and the Shabbat, are not the goal… but means to a goal and were ultimately poached, absorbed or modified from existing pagan practices. According to Maimonides, it is our job, 2,000 plus years later to try to discern the direction to which these intermediary steps are pointing. It is our job, nay mitzvah, to study comparative religion of the ancient Near East and to try to distinguish what parts of the teachings and commandments of the Torah are “borrowed” steps and which contain within them ultimate goals.
Maimonides realized the radical nature of such a suggestion. He writes:
I know that you will at first thought reject this idea and find it strange: you will put the following question to me in your heart: How can we suppose that Divine commandments, prohibitions, and important acts, which are fully explained, and for which certain seasons are fixed, should not have been commanded for their own sake, but only for the sake of some other thing: as if they were only the means which He employed for His primary object? ….. Hear my answer, which will cure your heart of this disease and will show you the truth of that which I have pointed out to you. There occurs in the Law a passage which contains exactly the same idea; it is the following:” God led them not through the way of the land of the Philistines, although that was near; for God said, Lest peradventure the people repent when they see war, and they return to Egypt; but God led the people about, through the way of the wilderness of the Red Sea,” etc. (Exod. xiii. 17). Here God led the people about, away from the direct road which He originally intended, because He feared they might meet on that way with hardships too great for their ordinary strength; He took them by another road in order to obtain thereby His original object. In the same manner God refrained from prescribing what the people by their natural disposition would be incapable of obeying, and gave the above-mentioned commandments as a means of securing His chief object, viz., to spread a knowledge of Him [among the people], and to cause them to reject idolatry.
This is truly a paradigm shift for our task in studying the Torah is now turned on its head. Not only are we implicitly obligated to use comparative religion, anthropology, archaeology, Near Eastern studies, linguistics, sociology and common sense to understand the context and antecedents of Biblical law and narrative, but we are challenged to discern not the letter of the law but rather the direction in which it points. Torah is less a book of laws and more a path… an arguably crooked and perplexing path.. but one we are dared to follow.
Happy are they that are upright in the way, who walk in the torah of the LORD. (Psalms 119: 1)
אַשְׁרֵי תְמִימֵי-דָרֶךְ– הַהֹלְכִים, בְּתוֹרַת יְהוָה
[ia] Why redemption, for properly attributing source material? The Talmud (Megillah 15) cites Esther 2:22 – “Queen Esther told the King in the name of Mordecai” of the plot against him. This extraneous positive mention later surfaced, leading the King to put Mordecai above Haman, leading to the redemption of Shushan’s Jews. See also: the Gemara (Nazir 56b) which states that when there is a long line of attribution, you need only mention the first and last.
[i] By way of introduction; Maimonides, wrote his seminal philosophic work: The Guide for the Perplexed (Hebrew: Moreh Nevuchim) in such a way so that it would enlighten those inquirers for whom it was intended but whose most heterodox and controversial ideas would be buried “in dispersed chapters” (see Epistle Dedicatory and see Leo Strauss in his Persecution and the Art of Writing.)
[ii] It is, namely, impossible to go suddenly from one extreme to the other: it is therefore according to the nature of man impossible for him suddenly to discontinue everything to which he has been accustomed. Now God sent Moses to make [the Israelites] a kingdom of priests and a holy nation (Exod. xix. 6) by means of the knowledge of God. …. But the custom which was in those days general among all men, and the general mode of worship in which the Israelites were brought up, consisted in sacrificing animals in those temples which contained certain images, to bow down to those images, and to burn incense before them; religious and ascetic persons were in those days the persons that were devoted to the service in the temples erected to the stars, It was in accordance with the wisdom and plan of God (literally “gracious ruse”), as displayed in the whole Creation, that He did not command us to give up and to discontinue all these manners of service; for to obey such a commandment it would have been contrary to the nature of man, who generally cleaves to that to which he is used; it would in those days have made the same impression as a prophet would make at present if he called us to the service of God and told us in His name, that we should not pray to Him, not fast, not seek His help in time of trouble; that we should serve Him in thought, and not by any action. For this reason God allowed these kinds of service to continue; He transferred to His service that which had formerly served as a worship of created beings, and of things imaginary and unreal, and commanded us to serve Him in the same manner; viz., to build unto Him a temple; … He selected priests for the service in the temple; …He made it obligatory that certain gifts, called the gifts of the Levites and the priests, should be assigned to them for their maintenance while they are engaged in the service of the temple and its sacrifices. By this Divine plan (literally “gracious ruse”) it was effected that the traces of idolatry were blotted out, and the truly great principle of our faith, the Existence and Unity of God, was firmly established; this result was thus obtained without deterring or confusing the minds of the people by the abolition of the service to which they were accustomed and which alone was familiar to them.
I know that you will at first thought reject this idea and find it strange: you will put the following question to me in your heart: How can we suppose that Divine commandments, prohibitions, and important acts, which are fully explained, and for which certain seasons are fixed, should not have been commanded for their own sake, but only for the sake of some other thing: as if they were only the means which He employed for His primary object? ….. Hear my answer, which will cure your heart of this disease and will show you the truth of that which I have pointed out to you. There occurs in the Law a passage which contains exactly the same idea; it is the following:” God led them not through the way of the land of the Philistines, although that was near; for God said, Lest peradventure the people repent when they see war, and they return to Egypt; but God led the people about, through the way of the wilderness of the Red Sea,” etc. (Exod. xiii. 17). Here God led the people about, away from the direct road which He originally intended, because He feared they might meet on that way with hardships too great for their ordinary strength; He took them by another road in order to obtain thereby His original object. In the same manner God refrained from prescribing what the people by their natural disposition would be incapable of obeying, and gave the above-mentioned commandments as a means of securing His chief object, viz., to spread a knowledge of Him [among the people], and to cause them to reject idolatry. It is contrary to man’s nature that he should suddenly abandon all the different kinds of Divine service and the different customs in which he has been brought up, and which have been so general, that they were considered as a matter of course; …In the same way the portion of the Law under discussion is the result of divine wisdom (literally “gracious ruse”), according to which people are allowed to continue the kind of worship to which they have been accustomed, in order that they might acquire the true faith, which is the chief object [of God's commandments]. …As the sacrificial service is not the primary object [of the commandments about sacrifice], whilst supplications, Prayers and similar kinds of worship are nearer to the primary object, and indispensable for obtaining it, a great difference was made in the Law between these two kinds of service. The one kind, which consists in offering sacrifices, although the sacrifices are offered to the name of God, has not been made obligatory for us to the same extent as it had been before. We were not commanded to sacrifice in every place, and in every time, or to build a temple in every place, or to permit anyone who desires to become priest and to sacrifice. On the contrary, all this is prohibited unto us. Only one temple has been appointed,” in the place which the Lord shall choose” (Deut. xii. 26): in no other place is it allowed to sacrifice: …. and only the members of a particular family were allowed to officiate as priests. All these restrictions served to limit this kind of worship, and keep it within those bounds within which God did not think it necessary to abolish sacrificial service altogether. But prayer and supplication can be offered everywhere and by every person. The same is the case with the commandment of zizit (Num. xy. 38); mezuzah (Dent. vi. 9; xi. 20); tefillin (Exod. xiii. 9, 16): and similar kinds of divine service.
Because of this principle which I explained to you, the Prophets in their books are frequently found to rebuke their fellow-men for being over-zealous and exerting themselves too much in bringing sacrifices: the prophets thus distinctly declared that the object of the sacrifices is not very essential, and that God does not require them. …. Isaiah exclaimed,” To what purpose is the multitude of your sacrifices unto me? saith the Lord” (Isa. i. 11): ….For it is distinctly stated in Scripture, and handed down by tradition, that the first commandments communicated to us did not include any law at all about burnt-offering and sacrifice. ….. …. The Psalmist says:” Hear, 0 my people, and I will speak; 0 Israel, and I will testify against thee: I am God, even thy God. I will not reprove thee for thy sacrifices or thy burnt-offerings, they have been continually before me. I will take no bullock out of thy house, nor he-goats out of thy folds” (Ps. 1. 29).– Wherever this subject is mentioned, this is its meaning. Consider it well, and reflect on it.
[iii] See A New Science: The Discovery of Religion in the Age of Reason By Guy G. Stroumsa Harvard University Press, 2010 page 93
For a source of Temple as gracious ruse in the Midrash, see:
“דבר אל בני ישראל ויקחו לי תרומה … ועשית את המזבח עצי שטים” – כל עניין המנורה והשולחן והמזבח והקרשים והאהל והיריעות וכל כלי המשכן – מפני מה? אמרו ישראל לפני הקב”ה: ריבונו של עולם, מלכי הגויים יש להם אוהל ושולחן ומנורה ומקטר קטורת, וכן הוא תכסיסי מלוכה, כי כל מלך צריך לכך, ואתה הוא מלכנו גואלנו מושיענו – לא יהיו לפניך תכסיסי מלוכה, עד שיוודע לכל באי עולם כי אתה הוא המלך?
אמר להם: בני, אותם בשר ודם צריכים לכל זה, אבל אני איני צריך, כי אין לפני לא אכילה ולא שתייה, ואיני צריך מאור, ועבדי יוכיחו כי השמש והירח מאירים לכל העולם ואני משפיע עליהם מאורי, ואני אשגיח עליכם לטובה בזכות אבותיכם.
אמרו ישראל לפני הקב”ה: ריבונו של עולם, אין אנחנו מבקשים את האבות (ישעיה ס”ג), “כי אתה אבינו, אברהם לא ידענו וישראל לא הכרנו”. אמר להם הקב”ה: אם כן, עשו מה שאתם חפצים, אלא עשו אותם כאשר אני מצווה אתכם… שנאמר “ועשו לי מקדש…” “ועשו מנורה… ועשו שולחן… ועשו מזבח מקטר קטרת”.