Rabbi Akiva says: “We do not show compassion in judgment…” (Ketubot 9:2, Kehati trans.).
Although said regarding a particular context, this statement of Rabbi Akiva begs a much larger question - What is the relationship between din (strict law) and rachamim (compassion) in Halacha? As will be shown, Halacha does not regard these two concepts as an impossible combination, but rather, in some instances as one and the same, and in others, as complementary entities.
On the issue of the role of the Beit Din as the arbiter of justice in Jewish society, the Gemara (Sanhedrin 6b) presents (among others) the following opinion:
R’ Yehoshua ben Karcha says: It is a mitzvah for a judge to arbitrate a compromise, as it is stated: “Execute truth and judgment of peace in your gates” (Zechariah 8:16). But where there is judgment there is no peace; and where there is peace there is no judgment! What then is the judgment which has within it peace? I would say this is compromise.
The Rambam accepted this view and took it to its logical conclusion. He writes (Yad, Hilchot Sanhedrin 22:4):
It is a mitzvah to ask the disputing parties at the beginning of the court case whether they desire din or peshara…and any Beit Din that consistently rules a compromise is praiseworthy.
Thus, we see an example, and a fairly wide-reaching one at that, in which Halacha recognises the need to take into account peace as well as truth.
Kofin Al Midat Sodom (coercion against behaviour akin to that of the people of )
Here we have another Halachic principle that legislates a higher moral standard into mainstream law. As Arnold Cohen writes, “In Jewish Civil Law, equity will not allow a man… to adopt a ‘dog in the manger attitude’, refusing to confer upon another a benefit which costs him nothing. Provided he suffers no real or contingent harm, a man will be coerced to bestow the required privilege on his fellow.”27 This notion appears in a well-known Mishnah in Pirkei Avot. It states (5:13): There are four attitudes among men:
There are those who say, “What’s mine is mine and what’s yours is yours”. This is a median moral attitude and some say this is an attitude that was carried by the people of Sodom…. Those who say, “What’s mine is yours and what’s yours is yours”- is righteous.
Once again, whilst on the one hand the above Mishnah recognises the element of ‘righteousness’ inherent in an altruistic stance on personal property rights, Halacha enforces this lofty model as standard practice.
Above and Beyond the Law (Lifnim Mi’shurat Ha’din)
A third example of when compassion and ethics become part and parcel with strict law is in the implementation of the concept of Lifnim Mi’shurat Ha’din. On this topic, the Gemara (Bava Metzia 83a) brings a powerful story:
Raba bar bar Chanan (RbbC) had a keg of wine broken by porters. He took their cloaks as payment. They went and told Rav. Rav said to RbbC, “Give them back their cloaks!” RbbC then asked him, “Is that the din (strict law)?” Rav responded, “Yes, as it is written: In order that you go on the path of good people (Mishlei 2:20).” RbbC gave the porters back their cloaks. They (the porters) said to Rav, “We are poor people, and we laboured the entire day; we are starving and have nothing to eat.” Rav then said to RbbC, “Pay them their fee!” He asked Rav, “Is that the din?” Rav answered him, “Yes! As that very verse I quoted earlier continues: and keep the ways of righteous people.”
As Rashi on that Gemara notes, the verses quoted refer to “goodness” and “righteousness” rather than strict law and thus indicate that Rav’s judgment (and so too his definition of ‘din’ in this instance) was one that required Raba bar bar Chanan to go beyond the letter of the law in his treatment of the porters.
We are left to conclude, along with Rav Moshe Avigdor Amiel (former Chief Rabbi of ) that “Halacha does contain two categories of ‘strict law’ and ‘beyond the letter of the law’, but under Halacha, ‘strict law’ itself often contains the ‘beyond the letter of the law’.”28 Rav Amiel further explains that the character of Halacha parallels the character of Am Yisrael. For regarding us it is written, “your nation are all righteous people” (Yeshaya 60:21) and regarding Torah it is written, “And what nation is there so great, that has statutes and judgments so righteous as all this Torah” (Devarim 4:8).29
27 An Introduction to Jewish Civil Law, p.173
28 Ethics and Legality in Jewish Law, p.17.
29 Ibid., p.9.
Receive our publication with an in depth article and revision questions.
Listen to the Mishnah Shiurim by Yisrael Bankier