[Avodah] Love/Mercy as a Factor in Halakhic

[Michael Makovi]

I have previously written regarding Rabbi Benzion Uziel's use of
compassion and love as a tool for leniency in halakhah.

R' Yitzhak Grossman, however, responded with a case involving a woman
who claimed a certain man was the father of her child. The court ruled
that we should believe the woman, but Rabbi Uziel responded
indignantly that "Yet, this quality of compassion does not overturn
the law. . . . One may not favor a poor person in his judgment.
Compassion should not alter the law (Ketuhhot 84a). This means that
one cannot be merciful to one person at the expense of another;
rather, the law must he judged according to its absolute truth." R'
Grossman brought this as a proof against me.

However, Rabbi Haim David Halevi, Rabbi Uziel's student, explains this
matter differently, in his Aseh Lekha Rav 8:97, translated by Rabbi
Marc Angel in "The Love of Israel as a Factor in Halakhic
Decision-Making in the Works of Rabbi Benzion Uziel", Tradition 24:3,
Spring 1989.

After 15 pages of discussing how Beit Hillel was lenient because it
understood the frailty of the human condition, and after bringing
eight cases in which Rabbi Uziel was lenient based on compassion,
Rabbi Halevy brings, as his ninth case, this case of the woman
claiming the man is her father's child.

Rabbi Halevi says, "Although his [viz. Rabbi Uziel's] personality was
imbued with the love of compassion and mercy, he never allowed these
feelings to pervert true judgment, Heaven forbid. The law was decided
according to the haIakhic principles which we have received.
Compassion had the power of a "mi-de-rabbanan," leading him to find
openings in difficult cases, to engage in cases that not every judge
was ready to involve himself in, to search the sources strenuously in
order to find a lenient position to be utilized in an emergency
situation. But never was compassion invoked in a non-halakhic fashion.
The following responsum proves this point."

Rabbi Halevi first brings the reasoning of the court in Meknes:
whereas previous authorities would have doubted the woman's claim that
the man is her father's child, this was back when such cases of
promiscuous non-marital sex were rare. But today, when such cases are
common, the ramifications are dire, and we must be lenient and trust
the woman's claim.

Rabbi Uziel responded indignantly that logic would dictate the
opposite: if, in previous times, when promiscuity was rare, the rabbis
did not believe the woman, all the more so today we shouldn't believe
the woman, since she is more likely to have slept with many men,
creating doubt as to whether this particular man is her child's
father.

It is true that from Rabbi Uziel's own words, here, R' Grossman's
conclusion seems sound. Rabbi Uziel says, inter alia, "Yet, this
quality of compassion does not overturn the law. . . . One may not
favor a poor person in his judgment. Compassion should not alter the
law (Ketuhhot 84a). This means that one cannot be merciful to one
person at the expense of another; rather, the law must he judged
according to its absolute truth. ... I have written these words since
I have seen in thesc days a number of rabbis who try to establish
halakhah with the argument that times and conditions have changed, and
because of compassionate feelings. Therefore, I found it to be my
responsibility to say these few words which fulfill the short verse in
the Torah, 'Judgment is the Lord's.'"

Indeed, R' Grossman's conclusion appears sound: the law must cut
through the mountain, and leniency cannot be invoked to overturn the
law. And if leniency can ever be invoked, it is only when the case
does not have two parties, for in such a case, to be lenient with one
party is to be strict with the other, and compassion and leniency
cannot be allowed to unjustly cause a loss to one party out of mercy
to the winning party.

But Rabbi Haim David Halevi understood this whole matter differently.
Remember, his entire article is devoted to showing how Rabbi Uziel
ruled based on mercy and compassion, and he sees the present case as
the exception that proves the rule. Rabbi Uziel's disagreement here,
notwithstanding the literal and simple import of his words, was not
with using leniency per se. Rather, he objected to leniency being used
without there being also solid halakhic basis. Now, this solid
halakhic basis might involve minority opinions, etc., but it is still
solid. But here, the court in Meknes used logic which Rabbi Uziel
found entirely false; they ruled that today, one should trust the
woman more because promiscuity is common today, but Rabbi Uziel felt
that just the opposite, one should all the more *not* trust the woman,
due to promiscuity being more common. Since the technical halakhic
basis was wanting, the compassion and mercy were inadmissible. Mercy
and compassion cannot operate without technical halakhic basis, just
as conversely, formal halakhah cannot operate without mercy and
compassion and humane understanding. Din and rahamim must go
hand-in-hand.

I'll note that I myself had been in doubt regarding R' Grossman's
conclusion; it seemed to go against everything else Rabbi Uziel said
elsewhere. I didn't know how to answer this specific case, however.
Rabbi Halevi has apparently interpreted this particular case so as to
accord with the methodology Rabbi Uziel showed in general. (And recall
that Rabbi Halevi was a quite intimate student of Rabbi Uziel's.)

Michael Makovi