[Avodah] Judging

[Rich, Joel]

From R' A. Shafran on C-C

"The Jewish faith is a system of both beliefs and laws, and, like all laws, Judaism's are meant to be applied objectively. To be sure, there are instances where certain empathetic concerns can yield leniencies. In a kashrut case, for example, if hewing to the normative approach in particular situations will result in a great financial loss, it may be proper to adopt a more lenient one. Or, if a married man goes missing and is suspected to have died, certain evidentiary rules are waived for testimony about the man's death, so that his wife may remarry. But those leniencies exist within the law, and when they can be invoked is itself the subject of law and precedent. Where there is no such recourse, empathy is insufficient to supplant the law. We are admonished to "not favor the poor man in his dispute" (Exodus, 23:3). The job of a judge, as Judge Sotomayor rightly concluded, is to apply law, not feelings."


I would appreciate the chevra's take on this. IMHO it is what we used to call in the academy "hand waving".   Certainly there are cases where there is no recourse (R'YBS famously on the giyoret who brought the intended chatan back to yiddishkeit only to visit the grave and find him a kohain) but the " leniencies exist within the law" is another way of saying that the judge will use their empathetic concerns (me-lev shel torah) to determine which rules apply when - which is exactly what imho Judge Sotomayor was referring to in her original statement.  Let's face it , the judge is not always simply an umpire, especially in the secular system where there is no ratzon hashem guideline.  In our system,imho  it's expedient to overemphasize the "my hands are tied" aspect (so as to tie the hands of those we don't accept)but imho if we are intellectually honest, we must admit that (as R'YBS once said on a tape something like) the flexibility that the baalei mesorah have is fairly wide, if they choose to use it (and I would add of course if we choose to accept them as baalei mesorah)

KT
Joel Rich
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