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

[Chana Luntz]

RYG writes:

> 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" :)

Sorry?  You quote the story as follows saying:

" I [Judge Hand] remember once I was with [Justice Holmes]... I said to him:
"Well, sir, goodbye. Do justice!" He turned quite sharply and he said: "Come
here. Come here." I answered: "Oh, I know, I know." He replied: "That is not
my job. My job is to play the game according to the rules."

Now every English translation I have seen of the Torah translates tzedek as
justice (is not Justice, Justice you shall pursue up in a number of famous
American courtrooms?).  And I would extremely surprised if Justice Holmes
was not conversant with the King James version of the bible and/or similar
translations.  And yet here you have Justice Holmes emphatically stating
that he does not do justice - he plays by the rules.  In other words, he has
stated unequivocally to Judge Hand that btzedek tishpot is not his job.

In yet another quote you have Justice Holmes saying that he "hates justice".
Not that he hates compassion, which would at least be slightly closer to
what Rav Uziel is saying, but that he hates justice.

Can you imagine Rav Uzziel saying that "he hates tzedek" and that tzedek is
not his job?  The opposite - his tirade as you call it is to state precisely
that tzedek is his (and Rav Toledano's) job, that this is what he is
required to pursue.  Nor does he denigrate rachamim - he requires rachamim
in the way that society must relate to these orphans with living fathers and
the way that Rav Toledano must so instruct society.

What he does say, it seems to me, is that there are times when it is wrong
and incorrect to use rachamim in judgement, and if you do so, you will not
then get to tzedek.  

Now the key wording in the paragraph above is "there are times".  Your
interpretation appears to be to drop that wording - ie that what he is
saying is that "it is wrong to use rachamim in judgement, and if you do so
you do not then get to tzedek" - at least if you understand judgement to
mean when judging between litigants (ie ben adam l'chavero).

Whereas I am not convinced this is in the text you have provided, which is
why I have added in the words "there are times".  I could not see in the
piece you provided a statement that it is *never* correct to use
considerations of rachamim, but only that there is certain situations where
one might be tempted to use rachamim and where the Torah warns us off it.
If it were correct that one *never* used rachamim in din, then it would have
been enough for him to say "ain m'rachamim b'din" - the k'lomar is
unnecessary.  But what he does say is "ain m'rachamim b'din l'ish al
cheshbon chavero".  So then the question becomes, what is meant by "cheshbon
chavero"  and what is enough to make the din burur c'voker.

I wrote:

> > 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?

And you replied:

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

Not exactly, but I think it underlies it.  The question is - why, why is
that that we are not to be merachem b'din.  For that we need to understand
two things - one of course is the nature of din, but the second is the
nature of rachamim.  Is rachamim really rachamim if applied in situations of
din?   If it is not, then one can better understand why one is enjoined
against rachamim in din, because while one might think one is applying
rachamim, in fact one ends up neither with rachamim nor tzedek.

...
I wrote:

>>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.

And RYG replied:

> 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".

I agree he does not focus specifically on the broad general question
regarding the implications for society as a whole - but where do you see
that he "focuses on the fundamental and inherent *injustice* of commingling
Din and Rahamim".  I agree that he focuses on the incorrectness of it -
because the Torah tells us that it is incorrect to give priority to the poor
over the rich.  But - let us say that this injunction of the Torah is a
chok?  We have to do it this way because the Torah tells us to, whether it
makes sense or not.

I agree with you in that I do not believe that Rav Uziel sees it as merely
an incomprehensible chok.  But injustice is a very strong word (one to be
hated, according to Justice Holmes, with chok - or "rules of the game" to be
preferred).  How you understand Rav Uziel's understanding of why the Torah
tells us not to have compassion on the poor man will then drive the extent
to which you will extend the principle.  What are the problems involved in
adapting the din based on changes in time and place and feelings of rachamim
as articulated by Rav Uziel?  That last paragraph you quote sees it as
intrinsically problematic because it is not G-dlike.  But what is not
G-dlike?  Is it merely because it is wrong to co-mingle the two (perhaps
like shatnez or basar b'chalav)? is it because it is unjust to the other
litigant (as it I think you are deriving)? or because it distorts society
and generates a groundswell of injustice throughout society.  I don't
believe Rav Uziel says, at least in the pieces you have quoted (the clearest
reference is to al cheshbon chavero), one way or the other, but what I
wanted to show was that there are various options - something it seemed to
me that you had glossed over.

> 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.

Well, not entirely.  In the case of bad faith I am not sure that the judges'
sympathy would necessarily be with the woman.  It is a principle of English
law that "one who seeks equity, must come with clean hands" and a case of
bad faith would hence be rejected.  A similar sentiment would not be the
slightest bit unreasonable amongst the judges - ie a view that rachamim is
inappropriate, and might be tainted, in cases of bad faith (ie you need
deserving, and not undeserving, poor).  One you say that, at least according
to some poskim, a lack of bad faith changes the judgement, you are already
into the territory of rachamim in din, it just needs an absence of bad faith
to be invoked.

And even if you take the opposing view - one could still say that this is a
case where it is inappropriate to apply rachamim, because it needs to act as
a deterrent to people entering into financial commitments in order to "catch
a good catch" without thinking through the risks - ie there is a need to
discourage this kind of financial commitment at the time of erusin and/or
the giving rise to issues of asmachta - which might then undermine all such
commitments, despite the fact that it ends up being hard on the individual
woman so caught.  What if we could construct a scenario where it was not al
cheshbon chavero - ie somehow the man got compensated from some other
source, so he was in fact not out of pocket (or in the case of the father -
if say the state paid fathers but not mothers child support, so if the
father was not acknowledged as father, the state would pay nothing, and if
he was, he would be paid and it would then go to the child - would we still
say it is wrong to invoke rachamim?).  Would we still insist that, if the
husband was requiring the woman to pay *out of spite* and holding her an
aguna (and presumably refusing to accept the compensatory payment from
somewhere else), that was OK because according to strict din, she had to pay
him, and nothing else will do? If not, what does that tell us?

> Yitzhak


Regards

Chana