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

[Chana Luntz]

RYG writes:

> "Justice" has many shades of meaning:

Agreed.

> 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".

Agreed - and Rav Uziel is in favour of a human judge ruling in accordance
with "conformity to the principles of righteousness and rectitude in all
things".  However he believes that the principles of righteousness and
rectitude in all things are set out in the Torah, which is emet and belongs
to G-d. He thus believes that bringing rachamim into the equation where the
Torah tells the dayan not to is therefore not, by definition just, and
tzedek would not be done if this were to be done.

> 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.

No, I was not ignoring his words.  But you see, Rav Uziel would never, ever,
say he hated justice, even if he then explained after that what he meant.
That would be like saying he "hated G-d" or "hated Torah" and then
explaining what he meant by that.  If justice is an aspect of G-d and
belongs to G-d, then "v'ahavta et H' Elokecha" - you are forbidden to hate
justice - and you just could not say it that way.  A frum person would never
say - "I hate G-d which means that, I know if a man begins to talk about
that, for one reason or another he is shirking thinking in halachic terms".
You might say - well truly G-d is encapsulated in the halachic terms, and
one cannot (it is not correct to) talk of G-d outside halachic terminology -
but you could not say it the way Justice Holmes says it if you are frum.
Justice is a godly principle.

Similarly Justice Holmes sees justice as something out there, not applicable
to the court room, where he is required to play by the rules and thinking in
legal terms. G-d should not be in the courtroom.  And hence he hates it if
somebody tries to bring questions of justice into his courtroom.  Rav Uziel
believes that justice is fundamental to what he is enjoined to do, and that
rachamim can distort justice.  But the idea that G-d should not be in what
he does is a complete anathema.
  
> It is inherent to the nature of Din that tendentiousness will generally
> be 'al heshbon havero'; I disagree with your reading.

Not sure of your use of tendentiousness here.  In the case of the rich and
poor litigant, rachamim on the part of the judge will most likely result in
injustice to the rich litigant, and any exceptional case where it would not,
would still risk opening up the floodgates to the majority cases where it
would.  But where, for example, the question is how widely to spread the net
- such as is the case a husband and wife, where one could look strictly at,
say the monetary dispute, or more widely at other aspects of the
relationship, you may get a more just result if you use rachamim in din.  It
would then be difficult to say that the application of rachamim is "al
heshbon havero" with the assumption of innocence that that implies.  You
appear to have assumed that Rav Uziel is against justice in favour of strict
legal principles, and therefore both cases are ruled out, whereas he can
just as well be in favour of justice, just against rachamim where it leads
to injustice, and is guided by the Torah as to when that does or does not
occur.  

> Yitzhak

Regards

Chana