Rav Zalman Nechemiah Goldberg explains that indeed, the distinction is something else entirely: “din” is a set of sweeping, broadly applicable rules, and layered on top of them is the standard of “lifnim mishuras hadin”, situational guidelines that cannot be rigidly formulated in the abstract, but that instruct us to consider the individual circumstances of each particular case. Thus, the Poskim direct us to weigh the relative wealth of the opposing claimants, as well as the level of piety of he who has the “din” on his side. [3]
Compassion and the Civil Court
Chief Justice of the United States Supreme Court John Roberts eloquently presented his view of the judge’s duty, during his Senate confirmation hearings:
“I had someone ask me in this process – I don’t remember who it was, but somebody asked me, you know, “Are you going to be on the side of the little guy?” And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy’s going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution. That’s the oath. The oath that a judge takes is not that, “I’ll look out for particular interests, I’ll be on the side of particular interests.” The oath is to uphold the Constitution and laws of the United States. And that’s what I would do. …
And it’s, again, what’s carved above the doors to the Supreme Court:
“Equal justice under law.” And the judicial oath talks about doing justice without regard to persons, to rich and to poor. And that, of course, is critically important.” [4]
The Torah’s Perspective
On the one hand, this seems to be exactly what the Torah (L’Havdil) twice commands us, unambiguously:
ve’dal lo sehedar be’rivo (Shemos 23:4) lo sisa pene dal (Vayikra 19:15)
But on the other hand, we have already noted that some Poskim authorize the court to enforce an obligation of “lifnim mishuras hadin”, which will often derive from the indigence of one of the parties.
And so, Dr. Michael Vigoda argues, from this and other sources, that contrary to two separate rulings of secular Israeli judges that both invoked the above Biblical injunctions to impartiality as grounds for the summary rejection of appeals for clemency based on the poor financial circumstances of the defendants, the Torah’s true attitude is more nuanced:
“In summary, it seems that it is not correct to rely on the verse “ve’dal lo sehedar be’rivo” to justify the refusal to reduce the penalty that is assessed as a punishment against a poor man.” [5]
Lifnim Mishuras Hadin in the Responsa Literature
The requirement of acting “lifnim mishuras hadin” occasionally appears in formal responsa; we close with two examples.
Rav Moshe Teitelbaum (the Yismach Moshe) discusses an engagement contract that required the bride’s father to produce an agreed upon dowry by a specific deadline, which he failed to meet, and the groom’s father therefore wished to terminate the engagement contract. After a lengthy analysis of the Halachos governing such contracts, Rav Teitelbaum concludes that insofar as the delinquent
was currently willing to provide surety for the dowry, it is inappropriate for the groom’s father to insist on breaking the engagement since the other party is now ready and willing to fulfill his obligation, “and especially a Ben Torah and a Yarei Shamayim, it is not nice for him to act so”. [6]
Rav Yissachar Shlomo Teichtal discusses a community that wished to reduce the fixed salary that its Rav had been receiving. Rav Teichtal sides with various other Poskim who forbade this, for various reasons, and he adds that in addition to compelling a community to comply with the “din”, we may sometimes even compel it to act “lifnim mishuras hadin”. He has a lengthy and valuable analysis of the topic, and he establishes two bases for requiring a community to go beyond “din”: it has the status of an “important person” (“adam chashuv”), and it is considered wealthy, or at least not poor. [7]
Notes:
1 http://www.kfor.com/news/local/kfor-news-wallet-returned-story,0,333949.story,
http://www.myfoxboston.com/dpp/news/local/homeless-man-returns-lost-cash-20101215,
http://www.abc2news.com/dpp/news/region/baltimore_city/baltimore-couple-tracks-down-owner-of-lost-wallet-in-minutes
2 See Bava Metzia 24b and 83a, Tosfos (24b s.v. lifnim), Mordechai
(#257), Shulchan Aruch Choshen Mishpat 12:5 (Rema), Pischei Teshuvah 6, Shulchan Aruch 259:5, Shach 3
3 http://www.yeshiva.org.il/midrash/Shiur.asp?id=350 ,
http://www.yeshiva.org.il/midrash/shiur.asp?id=3
4
http://www.washingtonpost.com/wpdyn/content/article/2005/09/15/AR20 05091501867_5.html
5 http://www.daat.ac.il/mishpat-ivri/skirot/62-2.htm ,
http://www.daat.ac.il/encyclopedia/value.asp?id1=216 (my
translation)
6 Responsa Heshiv Moshe, #48
7 Responsa Mishnas Sachir, Choshen Mishpat #4
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