[Avodah] Dispute Resolution
micha at aishdas.org
Fri Jan 25 10:35:30 PST 2013
On Thu, Jan 17, 2013 at 12:53:51PM -0500, Rich, Joel wrote:
: how the Rishonim understand these concepts is breathtaking - IIUC
: shuda [d'dayna] runs from the judge should do his best to mirror his
: best guess at equity, to HKB"H doesn't care what the result is and
: the judge can do whatever he wants and feel good about it. Similarly
: IIUC kol [d'alim gvar] runs from its judges absenting themselves
: (and the litigants can arm wrestle till the cows come home) to a
: one time reflection of a court action based on assuming the "right"
: person will win. So let's start with an easy question. When HKB"H
: commanded the nations in dinim (courts), did he give them direction in
: dispute resolution or just say you figure it out any methodology you like?
I think the latter. I always understood the Noachide chiyuv in light of
Avos 3:2. Any system that keeps people from eting eachother alive would
fulfil the chiyuv.
To my mind, a bigger question would be WRT the Noachide issur of geneivah.
There it would seem that their legal contstructs to define ownership
ought to be less relevant than halakhah's definition of baalus. However,
since transfer of baalus too is based on expectation -- dina demalkhusa,
situmta -- perhaps by definition baalus would be transfered if ownership
in the sense they're thinking of is.
And it's possible that even hefqer BD hefqer, shuda dedaina and kol
de'alim gevar (which sounds much like "hamotzi meichaveiro") are also
instances of this linkage between ownership and expectation.
Micha Berger What we do for ourselves dies with us.
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