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

[Yaakov Moser]

> On Sun, March 25, 2007 4:33 pm, Yaakov Moser wrote:
> : Can we assume that usually Halacha, at least in realms of Hoshen
> : Mishpat, is close to what we feel is morally correct and it is only this
> : case which is out of line, or are there plenty of other examples of such
> : a dissonance? ....
>
> I was asked a variant of this theme on scjm, so I started thinking about the
> question already.
>
> "Ve'asisa hatov vehayashar" implied that someone has a concept of tov and
> yashar that is not spelled our in specific halakhos. Where else are we
> supposed to get these notions from? It would seem to argue for an inherent
> morality that is usable to define a chiyuv de'Oraisa.
> ...
>
> But WRT bein adam lachaveiro, you would think that there are many more cases
> where we could map from the underlying and intuitive rule to specific dinim.
> Minus those BALC which depend on your impact to his spiritual state in some
> way neither of you understand. But neziqin, choshein mishpat... I would think
> that instinctive assessment of a well-thought-out understanding of the
> metzi'us ought to be the same as din in the majority of cases.
>
> Tir'u baTov!
> -mi
For the benefit of continuing this debate (and the one concerning YCT and Yated that is happening concurrently), I have reread Rav Aharon Lichtenstein's article "Does Judaism recognise an ethic independent of Halacha?".

RAL's conclusion there is that there is "din" which presents case law, and in addition to that there is "Lifnim MeShurat HaDin" which is a further Halachic obligation where din is insufficient in and of itself. Din creates law which is applicable in all circumstances, irrespective of the nature, positions and status of the Baalei Din. However, there are times when this is insufficient - either due to the to lack of clear din, or because there seems to be a moral problem with the din. In such a case "lifnim meshurat hadin" becomes operative.

This is based on a comment of the Ravya regarding returning lost property even after the owner despaired of it. There is no  "din" requirement to do so, but there is a requirement of "lifnim meshurat hadin". The Ravya noted that this is the case because it may be that the finder is poor and the loser wealthy. "lifnim meshurat hadin" gives a latitude that is unavailable under rules of "din".

[For further elucidation, I refer everyone to the article itself. RAL notes that we need to be very careful with our terminology - "halakha" with a small h is equivalent to din, while "Halakha" as a complete system includes also "lifnim meshurat hadin" requirements.]

[For clarification - to here was my understanding of RAL, now it's my continuation]

In most cases, I too would expect that "din" reflect our basic "moral sense" regarding the case - shorn of any particulars regarding the nature of the Baalei Din. Thus in the case of returning lost property, the rule itself makes sense, until you throw in the rich man/poor man conundrum. 

I would agree that this seems to be the upshot of Hillel's rule - referring to BALC only, not WRT to rules of BALM.

However, in the case of the Poalim, I find the basic law to be problematic. Whose fault is it that the river dried up (and assuming no difference in knowledge)? In such a case, I would say (following Hillel?) - split the difference 50:50. From here you can add extra-halachic (but still inner-Halachic) measures of "Lifnim meshurat hadin", if the workers are poor and the owner wealthy (or vice versa). [The wedding singer story plays off on several of these points]. 

The basic understanding of the rule seems to be that this was a force majeure, an act of God, and whoever suffered from it suffered. Is this consistent with Hillel?

Jason Moser


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