[Avodah] Halachic who is right from "The Lost Scotch"

[Samuel Svarc]

>From: "Chana Luntz" <chana at kolsassoon.org.uk>
>Subject: Re: [Avodah] Halachic who is right from "The Lost Scotch"
>
>
>I think you are missing my point here.  While I agree with you that we
>need to look at the combination and not ignore the effect of the kala
>(which is why I referred to the derech of Devorah later in that post) -
>the question that this particular piece raises is whether the fact that
>they were married made a difference.  Ishto k'gufo is a technical
>halachic term which results in real halachic differences in psak.

I don't think one can apply Ishto k'gufo here. We're dealing with knowledge
here, and regardless of what halachic realities is created by this concept
it does not create knowledge of what the other spouse thinks.

>But in general I think some of the critism of what the book is trying to
>do is misguided.  In this particular case, I do not agree with the
>analysis of the applicability of the si'if in the Shulchan Aruch.  But
>it is very normal to have a system of technical law onto which is
>layered more moral (and yet legal considerations) - the common law
>system works exactly this way, with its division between law and equity.
>
>For the last couple of days I have been hoping to respond to the last
>point in RMK's post about middus chassidus, which in this case is
>probably more correctly called lifnin meshuras hadin - but have not had
>a chance, and as I have a very wriggly baby on my lap at the moment, it
>is not going to happen now, maybe tonight.   Not that I think you need
>it in this case, but it is arguably the equivalent of equity (especially
>if you follow the side of the machlokus brought by the Rema in Hoshen
>Mishpat 12;2 that a judge can impose lifnin meshuras hadin).  But you
>need to know law first before you can apply equity correctly, and the
>same here.

The author himself makes this last point in his halachic forward. I quoted
it in full in Avodah Digest, Vol 23, Issue 59. I'll requote the relevant
paragraph or two again.

" Synonymous with such an approach are the barometers of moral correctness,
ehrlichkeit and mentchlichkeit. It is erroneous to pursue a regimen of
strict halachic adherence without considering these platitudes, as evidenced
by the Talmud's statement, "Jerusalem was only destroyed because of halachic
exactitude in money matters." (Baba Metzia 30b)

However, it must be emphasized that to base an approach to monetary dispute
solely upon one's moral inclinations is woefully inadequate. On the
contrary, such an outlook lends itself to halachic abuse, for "every man is
just in his own eyes" (Mishlei, chap.21 v.2) - by process of elimination
disputants will inevitably blame the conflicting party for not being
ehrlich. Under this 'noble' banner, a vociferous, well-connected and
charismatic litigant can engineer a coercive social atmosphere to demonize
the opponent, from which the only escape is capitulation. This is certainly
not consonant with halacha. The truly moral path first requires an
appreciation of the halacha, and only afterwards considers what is ehrlich
and mentchlich and what not. "