[Avodah] Love/Mercy as a Factor in Halakhic Decision making - Rabbis Uziel and Halevy

[Chana Luntz]

RYG write:

> I discuss some of these issues here:
> 
> http://bdl.freehostia.com/2008/11/06/two-chief-rabbis-on-rabbinic-wills-
> and-halachic-ways/
> 
> My piece revolves around a responsum of Rav Uziel in which he takes the
> *exact opposite* position to the one you ascribe to him here; it
> contains a lengthy and eloquent diatribe insisting that it is utterly
> illegitimate to base rulings on considerations of compassion.
> 
> [At the end of the post, I link to some Avodah controversy about my
> analysis.]

While I commented in more general terms in previous posts on this thesis,
mostly in response to RMB (and I see I get a link) I have not so far
commented directly on the blog piece.  I terms of your thesis, I would say
as follows:

a) I suspect that Rav Uziel would be horrified to have his position compared
to that of Justice Holmes - nor do I think it fair.  Rav Uziel would most
emphatically say that indeed he "does Justice" - in fact he says this in the
piece that you quote - the din must be "emet l'amito" and "btzedek tishpot
amitecha" is rather contrasted with having rachamim, which is not k'din.

b) it seems to me that there is also a more complicated issue at stake,
which is summed up by the legal axiom - "hard cases make bad law".  The
danger is always that because of the situation of the parties before the
judge, and the natural sympathies of the judge towards one party, he may
rule in favour of that party,  - and because of the nature of the precedent
system, that rule, if applied more widely, might in fact be the opposite of
just.  The case under discussion in the teshuva could easily fall within
this category.  While in the particular situation of Mazel Tov bat Eliyahu
and  David Chadad ben Machlif, it might be best that the father support the
son, to create a "rule" obligating such support may well have all sorts of
negative social consequences - while it might dissuade some potential
fathers, it might arguably encourage certain potential mothers to act in
ways that might not be desirable.  And hence in terms of compassion, it is
not totally clear how the chips fall - after all, is it ultimately
compassionate to encourage the production of children to be born in less
than ideal circumstances, or is it more compassionate in the long run to
deny maintenance if it will lead to fewer of such children being born?
Given this, I would turn to the mamzer case.  You and your challengers have
assumed that the case of a mamzer falls squarely within ben adam l'makom.
But it would seem likely that one of the primary aims of the "mamzer
legislation" if you can call it that, is to ensure that there will be fewer
children born out of adulterous relationships than might otherwise - thus
preventing potential children being born in difficult family situations, in
direct parallel to the maintenance case.  Is this really bein adam l'makom?


c) In light of this, it seems to me that Rav Uziel's fundamental concern is
both wider and narrower than you posit.  We have specific commandments in
the torah about how we approach din.  One of these is that we must not
favour the poor man in judgement.  Now the instincts towards favouring the
poor man are obvious - if we look at the two parties, it often seems hard to
justify why one man should be rich and another should be poor, and therefore
the temptation to redress the balance a bit is very strong.  And in many
ways - in terms of the two of them, one might argue that, in the
circumstances, that is the "just" thing to do.  But in terms of overall
society, what such a judgement will do is encourage the search for "deep
pockets".  But because of the nature of judgment, not all deep pockets will
be available (as it would in a pure redistributive system, where the money
would go in and out through a central repository such as government).  So
what would then happen is that there would arise a rule that deep pockets
plus proximity equals liability.  But proximity is again a matter of luck,
so we end up with a situation that neither deals with overall justice (as a
redistributive society would) nor with justice between the two parties seen
in isolation of their background possessions.  And it seems hard to see such
a scenario as a truly compassionate one at any level - despite the judging
thinking he is being compassionate in giving the original judgement.

So the logic for the Torah rule about using extraneous circumstances to
drive judgement seems soundly based, even if you were not talking about a
specific issur.  But here there is a specific issur - ie the case being
raised here would seem to fall fair and square with the context of the
particular circumstance that the Torah requires not to be taken into
account. A child seeking maintenance is poor, and that is what seems to be
driving Rav Toledano.  But to make the basis on which a child is entitled to
maintenance the poverty in which it finds itself not only puts it in direct
contradiction with the halacha of not favouring the poor, but also leads to
all sorts of potentially negative ramifications for the society as a whole.

However other forms of judgement will not necessarily impact in this way.
The tension between wanting to have compassion in the individual case and
get a person "out" of the status of mamzer, and the need to preserve the
deterrents that Rav Uzziel describes make mamzerus a great example.  It is
an accepted principle of halacha that any Rav will try their best in the
individual case to find reason why the person is not a mamzer (and this is
regarded as an aspect of compassion), without tampering with the general
rules of mamzerus (and, perhaps, ruling it out of existence).  A comparable
ruling might at times allow us to find, in certain particular individual
cases, a reason why perhaps the father should be supporting the child,
without necessarily making a blanket rule of paternal responsibility (and
think of the situation where it happened the mother was rich, and then died
leaving the child rich, would we necessarily want the father being able to
claim and control the wealth of the child - rather than the maternal
grandparents?  If the answer is no, then one can see clearly that the issue
here is about the poverty of the child, whereas it is much less common that
there is a situation where one might want to find a particular person to be
a mamzer - although of course, with one already married to a mamzer, and
with children, one might indeed find such a situation).

But following on from all this am not sure that your example regarding
husband and wife, if I have understood it correctly, is necessarily
apposite.  You write:

>the Dayyan is nevertheless permitted and even urged to try to find some
>Halachic basis for compelling the husband to give a Get. We are not
>infringing on the husband’s rights by this; he’s a Rasha, and the only
>obstacle preventing us from ruling כפיה is a בין אדם למקום concern for the
>extremely serious issues of Eshes Ish and Mamzerus that can arise in the
>event of a גט מעושה שלא כדין. If, however, there is some legitimate dispute
>between husband and wife, then no matter how much sympathy we may have for
>the plight of the wife, we are absolutely forbidden against the slightest
>deviation from Din,...

I am not sure what exactly you mean by this -ie what is forbidden?  Do you
mean that the dayan finding for the wife in monetary matters to compensate
her for the lack of get?   Do you mean finding for the wife in monetary
matters to compensate her for the anguish she was put through before
receiving the get?  Do you mean holding up the judgement on monetary matters
because the get is still outstanding (that would also constitute taking
external considerations into account if you consider that the presence of
absence of a get counts as an external consideration which much not be
considered, akin to the wealth or poverty of a litigant)?

The point is, there are various places one could draw a line, when looking
at two litigants, in deciding which bit of the relationship between them is
relevant to a dispute and which is not. But there is certainly an argument
than any part of the relationship is relevant.  The existence or absence of
a get is due to the actions or inactions solely of the two litigants.
However, in general, the absolute wealth or poverty of a litigant is not a
product of the relationship between the two litigants, but of society.  Seen
in this light, the case of the child born out of wedlock is interesting,
because you could argue it both ways - one the one hand the child could be
said to be poor because the father did not marry the mother and bind himself
appropriately.  On the other hand, zeh v'zeh gorem, it is not just the
father whose absence caused the poverty, but also absence of wealth of the
mother - nor was, except in the case of rape, the conception solely the
responsibility of the father.  That Rav Uziel sees perhaps a greater
societal responsibility bringing it within the issur of dal lo tehadar, and
Rav Toledano sees it more as a matter of the individual responsibility
solely of the father does not, it seems to me, necessarily extend this case
to that of a husband and wife - or necessarily to other ben adam l'chavero
situations.


> Yitzhak

Regards

Chana