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

[Yitzhak Grossman]

On Wed, 6 May 2009 00:11:21 +0100
"Chana Luntz" <chana at kolsassoon.org.uk> wrote:

> 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.

"Justice" has many shades of meaning:

Justice Jus"tice (j[u^]s"t[i^]s), n. [F., fr. L. justitia, fr.
   justus just. See Just, a.]
   [1913 Webster]
   1. The quality of being just; conformity to the principles of
      righteousness and rectitude in all things; strict
      performance of moral obligations; practical conformity to
      human or divine law; integrity in the dealings of men with
      each other; rectitude; equity; uprightness.

I think it is clear that Holmes objects to a (human) judge ruling in
accordance with "conformity to the principles of righteousness and
rectitude in all things", but not to "practical conformity to human or
divine law".

> 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.

You ignore Holmes's very next words, which explain exactly what he
means!

"I have said to my brethren many times that I hate justice, which means
that I know if a man begins to talk about that, for one reason or
another he is shirking thinking in legal terms."

Of course he does not hate justice per se.

...

> 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).

You're once again putting words into his mouth; I see nothing there
about "times", but rather, a series of categorical adjurations against
invoking rahamim while sitting in judgement.

> 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.

It is inherent to the nature of Din that tendentiousness will generally
be 'al heshbon havero'; I disagree with your reading. 

Yitzhak
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