Our Gemara on Amud Beis discusses the Talmudic principle of Hamotzi Mechaveiro Alayv Hara’yah, which translates best as, “If you wish to make a legal claim upon someone, the burden of proof is on you.” The Gemara considers the following verse as a source for this principle, which were instructions that Moshe gave to the Council of Elders, and Aharon and Chur before he ascended Mount Sinai (Shemos 24:14):

וְאֶל־הַזְּקֵנִ֤ים אָמַר֙ שְׁבוּ־לָ֣נוּ בָזֶ֔ה עַ֥ד אֲשֶׁר־נָשׁ֖וּב אֲלֵיכֶ֑ם וְהִנֵּ֨ה אַהֲרֹ֤ן וְחוּר֙ עִמָּכֶ֔ם מִי־בַ֥עַל דְּבָרִ֖ים יִגַּ֥שׁ אֲלֵהֶֽם׃

To the elders he had said, “Wait here for us until we return to you. You have Aaron and Hur with you; let anyone who has a legal claim approach them.

The implication of the verse is that the person who has a claim should bring their arguments forward to justify their assertion. 

Divrei Shaul (Ki Tissah) asks why the idea of Hamotzi Mechaveiro was established at the time of Moshe’s temporary departure, as the same legal rule should have applied when Moshe was serving as head of the Sanhedrin. He answers that we learned in Rosh Hashana (21b) Moshe was gifted with divine insight and pronounced legal rulings without witnesses or due process. Therefore, the legal functions of burden of proof and submission of evidence were only required in the Sanhedrin that would be formed in Moshe’s absence. 

This got me thinking that in essence, this was part of God’s plan. Moshe was almost supernatural, and for Judaism to continue in the long run, it could not be indefinitely led by a holy man who had a direct line to God. The Jewish people needed intellectual and emotional independence to carry the Torah forward, and learn how to ascertain God’s will through interpreting the Torah, and not just revelation.  This is why Moshe introduced the Elders to the idea that they must judge via legal process once he no longer was present.

Not coincidentally, when Moshe did not come back from Mount Sinai at the time expected by the Jewish people, they panicked and needed to create an idolatrous go-between. Shemos (32:1):

יַּ֣רְא הָעָ֔ם כִּֽי־בֹשֵׁ֥שׁ מֹשֶׁ֖ה לָרֶ֣דֶת מִן־הָהָ֑ר וַיִּקָּהֵ֨ל הָעָ֜ם עַֽל־אַהֲרֹ֗ן וַיֹּאמְר֤וּ אֵלָיו֙ ק֣וּם ׀ עֲשֵׂה־לָ֣נוּ אֱלֹהִ֗ים אֲשֶׁ֤ר יֵֽלְכוּ֙ לְפָנֵ֔ינוּ כִּי־זֶ֣ה ׀ מֹשֶׁ֣ה הָאִ֗ישׁ אֲשֶׁ֤ר הֶֽעֱלָ֙נוּ֙ מֵאֶ֣רֶץ מִצְרַ֔יִם לֹ֥א יָדַ֖עְנוּ מֶה־הָ֥יָה לֽוֹ׃

[When] the people saw that Moshe was late in coming down from the mountain, they gathered against Aharon, and said to him, “Arise, make us gods that will lead us, for this Moshe, the man who brought us up from the land of Egypt, we do not know what happened to him.”

Related to this Rav Tzaddok (Resisei Layla 24) holds that the Mishkan was instituted in reaction to the sin of the Golden Calf. The Jews needed a tangible object to act as a go-between.  However, I would suggest that initially, even before he took leave, Moshe was pushing the Jews toward independence so that the Jews could forge a relationship to Hashem through delving into Torah and using their intellect. He presaged the weakness that led to the Golden Calf, though in the end, he was not able to stop it.

Similarly, some commentaries explain that the reason why we do not know the actual location of Moshe’s gravesite is so he would not be worshiped. (See Abravanel 34:5. Midrash Lekach Tov Devarim 34:6 says something similar; so that they should not erect a Temple on his gravesite.) This also might be part of why Moshe could not enter the promised land. The Jewish people needed a line of demarcation, where they could begin to operate as a nation with a legal and social system, and economy. They could not live in Manna in the Clouds of Glory forever.

Even the Gemara’s reference to the principle of Hamotzi Mechaveyro can be seen as an ironic self-referential allusion to this point. After the Gemara offers a proof text for this principle, it then asks

מַתְקֵיף לַהּ רַב אָשֵׁי: הָא לְמָה לִי קְרָא? סְבָרָא הוּא – דְּכָאֵיב לֵיהּ כְּאֵיבָא, אָזֵיל לְבֵי אָסְיָא!

Rav Ashi objects to this: Why do I need a verse to derive this? It is based on logical reasoning that one who suffers from pain goes to the doctor. Just as here the individual with the problem has the responsibility to resolve it, so too, someone with a claim against another must bring a proof to corroborate his claim.

The Gemara seems to hold that if something is obvious, and could be derived through reasoning, a verse is not necessary. That is exactly the point; even though there is revelation it is legitimate to employ human reasoning as a source to understand God‘s will. One who has a claim, has the burden of proof, and the responsibility to make his argument. We must not be intellectually lazy but delve into the Torah constantly for new insights into spirituality, psychology and society.

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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