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

[Yitzhak Grossman]

On Tue, 5 May 2009 12:38:54 +0100
"Chana Luntz" <chana at kolsassoon.org.uk> wrote:

> 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/

...

> 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.

I think that Justice Holmes would be horrified at the insinuation that
his jurisprudence did not qualify as "emet l'amito" and "btzedek
tishpot amitecha" :)  In context, Rav Uziel's interpretation of the
principles you mention is *to the exclusion of compassion as a factor*,
which is *exactly* the point that Justice Holmes was making.

> 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?

This is all perfectly reasonable, but not the argument that Rav Uziel
makes here.

> 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?

An interesting point.

> 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.

This is all very thoughtfully argued, but I don't see any hint of this
line of reasoning in Rav Uziel's own words.  He focuses on the
fundamental and inherent injustice of commingling Din and Rahamim, and
not on broad, general questions of whether his ruling will lead to "all
sorts of potentially negative ramifications for the society as a whole".

...

> However other forms of judgement will not 
> 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

For an example of the sort of thing I have in mind, see SA (EH 52:1)
where we rule that a woman must remain an Agunah for her entire life if
she cannot meet the financial commitments that she made at her Erusin.
Helkas Me'Hokek (3) notes that it is 'mashma kezas' that this is even
if the woman has not acted in bad faith, where she did have the
wherewithal but suffered a subsequent financial reverse.  [Others
disagree - see Ozar Ha'Poskim there.]  Now, if an Arus took advantage
of this Halachah and his Arusah sued him in Beis Din, the judges'
sympathy would quite likely be overwhelmingly with the woman, but it is
certainly forbidden to rule against the Halachah.

Yitzhak
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