Justice and Righteousness (2)

 

THE LEGAL FORCE OF MORAL VALUES

 

In certain cases, Halakha gives legal legitimacy and force to systems that by their nature are moral and value-laden, rather than legal and formalistic. Chazal recognized that often a gap exists between law and moral justice.

 

"That they shall do" – this [means] going beyond the requirements of the law. For Rabbi Yochanan said: "Jerusalem was destroyed only because they judged in it [according to] the law of the Torah." Should they rather have judged [according to] the laws of arbitrary tribunals? Rather, say instead: Because they based their judgments on the [strict] law of the Torah, and they did not act beyond the requirements of the law. (Bava Metzi'a 30b)

 

Chazal assert here that Jerusalem was destroyed because the courts insisted upon judging in accordance with the strict law of the Torah, and refused to go beyond the requirements of the law. Often, however, it is not necessary to deviate from the law in order to actualize lofty moral principles; "going beyond the requirements of the law" is frequently transformed into law. We shall now discuss several striking examples of this characteristic of Halakha.

 

1. GOING BEYOND THE REQUIREMENTS OF THE LAW

 

Rav Yehuda was following after Mar Shmuel in the cereal market. He said to him: "If someone found a moneybag here, what is the law?" He said to him: "It belongs to him." "If a Jew came and gave an identifying mark on it, what is the law?" He said to him: "He is obliged to return it." "Both?" He said to him: "Beyond the requirement of the law." (Bava Metzi'a 24b)

 

Shmuel ruled for Rav Yehuda that if he found a moneybag in the marketplace, he is obligated to return it on the basis of an identifying mark, even though it may be assumed that its owner already despaired of it. This obligation "goes beyond the requirement of the law." Some have understood from this incident that even the voluntary "going beyond the requirement of the law" is endowed with legal force to the point that a person can be compelled to act in this manner! Thus, the medieval halakhist Rabbi Mordekhai ben Hillel writes that we see from here that a person may be compelled to go beyond the requirements of the law:

 

Since we see that that they would compel in this manner, as we find in the end of chapter Ha-umanim, we too may compel a person to go beyond the requirements of the law when that is possible … And so ruled Ra'avan and Ra'avya that a person may be compelled to go beyond the requirements of the law. (Mordekhai, Bava Metzi'a, no. 227)

 

This is undoubtedly a radical argument, for the very term "beyond the requirements of the law" implies that we are dealing with a moral norm that a person cannot be compelled to follow.  Indeed, Rambam (Hilkhot Gezela 11:7) and Rosh (Pesakim, Bava Metzi'a 2:7) disagree with Rabbi Mordekhai ben Hillel and say that a person cannot be compelled to act beyond the requirements of the law. There is, however, no shortage of examples of the way Chazal attached legal force to norms that are clearly extra-legal.

 

2. COMPROMISE  

 

Let us now examine the Gemara's discussion regarding compromise, which has great significance with respect to our topic:

 

Rabbi Eliezer the son of Rabbi Yose the Galilean says: It is forbidden to arbitrate a compromise, and whoever arbitrates a compromise is a sinner. And whoever praises one who arbitrates a compromise blasphemes. About this it is said: "He who praises one who arbitrates a compromise blasphemes God." Rather, let the law cut through the mountain, as it is said: "For the judgment is God's." Similarly, Moshe would say: Let the law cut through the mountain. But Aharon loved peace and pursued peace, and caused peace to reign between a man and his fellow …

Rabbi Yehoshua ben Korcha says: It is a meritorious deed to arbitrate a compromise, as it is said: "Execute truth and the judgment of peace in your gates." But surely where there is judgment there is no peace, and where there is peace there is no judgment. Rather, which is a judgment that contains peace? Say, this is a compromise. Similarly, regarding David, it states: "And David executed judgment and charity." But surely where there is judgment there is no charity, and where there is charity there is no judgment. Rather, which is a judgment that contains charity? Say: This is a compromise.

We have come to the first Tanna: If someone judged a judgment, [and] freed from liability the party who was not liable, and imposed liability upon the party who was liable, and he saw that a poor man had been obligated [to pay] money, and he paid him from his [own] pocket, this is "judgment and charity:" judgment to this one, and charity to that one. Judgment to this one that he returned money to him, and charity to that one that he paid him from his [own] pocket. (Sanhedrin 6b)

 

There is a fundamental difference between Rabbi Eliezer and Rabbi Yehoshua regarding the interpretation of the expression "judgment and charity." Rabbi Yehoshua explains that the verse refers to judgment that contains charity, that is, a compromise. According to him, charity intrudes here upon the law, and fashions a legal system that is comprised of both judgment and charity.

 

In contrast, Rabbi Eliezer maintains that "judgment and charity" refers to judgment the outcome of which is corrected by way of charity. There is an obligation to execute true judgment; the law must be allowed to cut through the mountain. Afterwards, however, the one who lost the judgment should be given assistance so that he may get back on his feet. That is to say, according to Rabbi Eliezer, charity does not intrude upon the legal system, but rather it fixes the damage caused by the legal system. Rabbi Eliezer maintains that the intermingling of the moral elements of charity in the legal system is not desirable. He prefers to distinguish between the two systems.

 

In practice, the law has been decided in favor of Rabbi Yehoshua, though with certain reservations:

 

Any court that always arbitrates a compromise is worthy of praise. (Shulchan Arukh, Choshen Mishpat 12:2)

 

3. "AND YOU SHALL DO THAT WHICH IS RIGHT AND GOOD"

 

"And you shall do that which is right and good." … Our Rabbis have a nice interpretation of this. They said: The idea behind this is as follows. [God] first asked us to observe "His statutes and testimonies which He had commanded you," and now He says that even in regard to those things where no specific Divine command applies, you should do that which is good and right in His eyes. For He loves that which is good and right.

This is a very important principle, for it is impossible for the Torah to record every detail of human behavior, embracing man's relations with his neighbors and friends, his business affairs, national and local welfare. But after having made reference to many aspects, such as "You shall not go tale-bearing," "You shall not take vengeance nor bear a grudge," "You shall not stand by the blood of your neighbor," "You shall not curse the deaf," "You shall rise up before the hoary head," etc., [God] continues with a general injunction to do that which is good and right in every matter, including compromise and going beyond the letter of the law.

For example, what the Rabbis said regarding the right of first refusal (Bava Metzi'a 108b) and even what they said: "His youth is becoming, and his conversation with people is gentle," to the point that regarding all matters he is called perfect and upright. (Ramban, Devarim 6:18)

 

Ramban explains that the verse, "And you shall do that which is right and good," is essentially a key to an enormous world of moral imperatives. We are dealing here with an all-encompassing command that obligates man to conduct himself in a moral manner and forbids him to be a "villain by permission of the Torah."  We are not dealing here with mere encouragement to act in a moral manner, but rather with a command that has clear halakhic implications, regarding the right of first refusal granted to the owner of the property that abuts the property up for sale (dina de-bar metzra), as well as the debtor's right to redeem property taken by the creditor in payment of a debt (shuma hadar):

 

The Nehardeans say: We remove a person [from land of which he took possession] even on account of the law of granting a neighbor first refusal, because it is said: "And you shall do that which is right and good in the eyes of the Lord." (Bava Metzi'a 108a)

 

And the law is: Appraised [and confiscated] property is returned forever, as it is said: "And you shall do that which is right and good." (Bava Metzi'a 35a)

 

4. "THAT YOU MAY WALK IN THE WAY OF GOOD MEN"

 

It happened to Rabba bar Bar Chanan that certain porters broke a barrel of wine belonging to him. He seized their cloaks. They came and told Rav.  [Rav] said to him: "Give them back their cloaks."  [Rabba] said to him: "Is this the law?" He [Rav] said to him: "Yes, 'that you may walk in the way of good men.'" He gave them [back] their cloaks. They said to him: "We are poor, and we have worked all day, and we are hungry, and we have nothing." [Rav] said to him: "Go and give them their wages." [Rabba] said to him: "Is this the law?" [Rav] said to him: "Yes, 'and keep the paths of the righteous.'" (Bava Metzi'a 83a)

 

It is related here that Rabba bar Bar Chanan was forced to exempt the porters who broke his barrel from paying damages, and even to pay them their wages, in keeping with "walking in the way of good men." Attention should be paid to the fact that the verses demanding moral behavior are presented here as unequivocal halakhic obligations, at the very least with respect to a person of the stature of Rabba bar Bar Chanan. Rav tells Rabba that this is not merely virtuous conduct, but the actual law!

 

5. WE MAY USE FORCE AGAINST THE SODOMITIC RULE

 

There was a certain person who purchased property adjacent to his father's property. When [his brothers] were dividing up [their father's estate], he said to them: "Give me the portion that is contiguous to my property." Rabba said: In such case we may use force against the Sodomitic rule. (Bava Batra 12b)

 

One of the heirs asked that the portion that he was to receive from his father's estate be contiguous to property already in his possession. Rabba argued that in such a case we force the other heirs to comply with his request, for "we may use force against the Sodomitic principle [of selfishness]." They lose nothing, so why should they care if he gains from the arrangement?

 

The Gemara questions whether this is actually an instance of the Sodomitic principle, or perhaps the other heirs will actually suffer a loss, and so it is within their rights to demand that the estate be divided differently. The Gemara implies, however, that in a case where the Sodomitic principle is indeed operative – that is, where one person has the opportunity to gain without the other suffering a loss – all agree that we may compel the one to allow the other to profit.

 

6. LIABLE BY DIVINE LAW

 

It was taught [in a baraita]: Rabbi Yehoshua said, There are four things that the person who does them is exempt by human law, but liable by Divine law. They are: One who breaches a fence in front of another person's animal [and it runs away]; one who bends his neighbor's grain stalks before the fire; one who hires false witnesses to testify; and one who is aware of testimony advantageous to another person, but doesn't testify. (Bava Kama 55b)

 

Chazal maintain that in certain cases of damages, a person is exempt from liability according to "human law," but nevertheless he is "liable by Divine law." What is the meaning of liability by Divine law? Are we merely dealing here with a moral recommendation, or is this a precisely defined halakhic principle? The medieval talmudist R. Menachem Meiri has a firm opinion on this question:

 

All the cases regarding which we have written here that a person is liable by Divine law – this means that he is liable to make restitution. But as for permissibility, even that for which he is exempt by Divine law, is nevertheless forbidden. What was said [here] relates only to compensation. The greatest authorities of the generations inferred from here that whoever is liable by Divine law is disqualified from serving as a witness until he makes recompense. This appears reasonable, for since he is required to make restitution, it falls into the category of theft until he does so. (Meiri, ad loc.)

 

According to Meiri, whenever a person is liable by Divine law, even though the earthly courts cannot compel him to pay for the damages, he is under obligation to do so. Therefore, until he makes restitution, he is called a thief and is disqualified from serving as a witness! Once again, we have an example of how a principle which Halakha itself views as a moral principle – liability by Divine law – intrudes upon Halakha and effects its laws. The sharp distinction between morality and law does not apply in the case of Halakha.

 

 

(Translated by Rav David Strauss)