[Avodah] Love/Mercy as a Factor in Halakhic Decision

[Michael Makovi]

>RMM presented it as though chessed vs din comes into play; ie that
> it's using love/mercy to tone down halakhah. And because he sees the
> compassion as extrahalachic, he asked how it was any different than what
> we disparage about C's legal process.
>
> R' Micha Berger

According to Rabbi Berkovits, hesed/ahavah would be extra-halachic
insofar as it is not part of the formal halacha. But it'd still be
internal to halacha insofar as it plays a role in halachic
decision-making.

But it's really a question of semantics, I think; one could just as
well say that hesed and ahava are factors in deciding formal halacha,
i.e. that formal halacha itself demands consideration of hesed and
ahava. I don't forsee a major nafka minah, so this is, AFAIK, purely a
question of semantics.

So we'd perhaps have three layers:
1) formal halacha, according to the technical logic and sources
2) hesed/ahava, external to formal halacha, but internal to halacha in
general. Cf. also Rabbi Immanuel Jakobovits's article in Tradition re:
Shahak following Rabbi Unterman (the article is at
http://www.edah.org/backend/document/jakobovits1.html), that shalom
plays a role in halacha, because the Gemara says that the Torah's very
raison d'etre is shalom. Following Rabbi Unterman's interpretation of
mipnei darchei shalom, Rabbi Jakobovits suggests that according to
halacha, shalom is an extra-halachic (insofar as it is not part of
formal halacha) factor that dictates that any halacha that is formally
correct, but not keeping with shalom, is ipso facto a false halacha.
That is, he says, the halacha itself dictates that its own formal
logic should be disregarded when it contradicts shalom. See especially
section III of Rabbi Jakobovit's article, at
http://www.edah.org/backend/document/jakobovitz/jakobovits2.html.
3) anything totally not part of halacha, at all; irrelevant to halacha, bichlal

On the other hand, Rabbi Elisha Anscelovits at Yeshivat Maale Gilboa
and Machon Pardes, has told me that he feels Rabbi Berkovits's
distinction between formal halacha and extra-halachic
shalom/hesed/ahava, is overly dichotomous. He says Rabbi Berkovits's
philosophy is based on Germanic notions which are outdated, and that
they need revision. He also said that while Rabbi Berkovits obviously
relied on the Dor Revi'i's petiha to the Dor Revi'i, he says Rabbi
Berkovits apparently didn't fully comprehend the Dor Revi'i.
Unfortunately, I didn't merit to understand Rabbi Anscelovits's
proposed alternative.

Perhaps Rabbi Anscelovits wanted hesed and ahava to be factors in
formal halacha, so that we'd only have two layers, viz. formal halacha
and everything that's irrelevant to halacha.

--------------

Anyway, my point was, that I've lost count of how many times Orthodox
polemicists have criticized the Conservative interpretation of Beit
Hillel's victory, viz. "they were lenient". Since Rabbi Halevy said
exactly this, I thought it notable. Actually, I was rather
flabbergasted myself; I actually doubt whether this is the historical
truth behind Beit Hillel's victory, but in any case, it is truly
amazing what Rabbi Halevy said, IMHO.

Also, I showed a Haredi haver here on the list (privately) some of the
rulings of Rabbi Uziel, and he exclaimed, "This is Torah??!!", and
explained how he felt Rabbi Uziel's rulings were contrary to the Torah
derech. So again, I thought this meant he was notable enough to post
on the list.

--------------

Interestingly, Rabbi Halevy rejected Rabbi Unterman's understanding of
darchei shalom, but Rabbi Halevy instead paskened Meiri, even if he
didn't cite the Meiri by name (AFAIK).

Personally, I don't think darchei shalom can be the same as mishum
eiva (even though Rambam says they are the same), because we have
several laws mipnei darchei shalom, that have nothing to do with
non-Jews, nothing to do with life-threatening animosity. For example,
I think one of the laws has to do with who gets to draw water from the
well first. Apparently, these laws are simply trying to create a
harmonious and peaceful society that functions smoothly, and they are
not utilitarian laws aimed towards the Jewish community's physical
security. On the other hand, I find it doubtful to say that mishum
eiva means shalom and love and harmony (like mipnei darchei shalom),
even though Rabbi Unterman wants to say they are the same. So I'll
agree with Rambam on mishum eiva (animosity) and Rabbi Unterman on
mipnei darchei shalom (harmony), but I'll disagree with Rambam on
mipnei darchei shalom (who says it is animosity like mishum eiva) and
with Rabbi Unterman on mishum eiva (who says it is harmony like mipnei
darchei shalom).

Michael Makovi