Scales Of Justice And Mercy
The Precedent of God's Compassion Sets Tone for Biblical Law
Emanuel Rackman - The Jewish Week [NY] - May 21, 1992
Jews who cherish Judaism's legal heritage are wont to boast that in that heritage there is as much pursuit of mercy as of justice. Indeed, one scholar pointed out that in the Bible one rarely finds the word mishpat (law) without the accompanying word tsedaka (charity).
In their worship of God, Jews were always aware of God's attributes of justice and mercy; the imitation of God was one of our aspirations, especially in the disposition of litigated cases. And though it is well known that justice and mercy are often irreconcilable, Jews tried to merge them in the administration of a legal system.
The Talmud tells how King David did so: When deciding whether a man was obliged to pay for a loan or a tort, David ruled that if the man who owed the money was too poor to pay, funds should be made available to him as an act of charity.
Jewish judges were not as bound by precedents as are judges in the United States. This gave the judges broader power to exercise compassion in their decisions. Of course, this discretionary power played havoc with the value of predictability and certainty in the law. Lawyers could hardly ever be sure that the advice they gave their clients on the basis of precedents would be accepted by the judges. But not being bound by precedents enabled the judges to give considerable weight to circumstances that called for empathy.
In 1942 when President Roosevelt announced how many planes the United States would build for the war, one major company on Long Island expanded its plant by simply taking over all the nearby properties it needed. At a later date it would compensate the owners. It was the clearest case of illegal trespass one could imagine. But no court would enjoin it from doing what it did. To win the war all considerations of strict law and all established precedents gave way.
Would there have been such a cavalier disregard of strict law in a case that did not affect national safety but only the compelling need of a human being, nothing but the requirement of mercy?
In Jewish law, that could happen. The judge might ignore strict law and exercise compassion.
But it is primarily in the rule of law itself that we find the quality of mercy. I cite one example of which I am especially fond.
Jewish law is very mindful of the plight of the debtor - especially poor ones. (And who borrows money other than the poor?) Indeed, the Bible itself mandates many rules that have become part of our modern legal heritage. These rules were so partial to the poor that the rabbis had to legislate to protect creditors to encourage them to continue making the loans.
One of the biblical rules applies to items of property the debtor has no other way to pay. The property is security for the ultimate repayment of the loan and in consideration of the extension of time he gets for that repayment. However, there is one limitation. If the item of property given as security is needed by the debtor, the creditor must make it available to him.
If a blanket is given as security and the debtor needs it at night for his sleep, the creditor returns it at sundown and fetches it again in the morning. If a coat is given and the debtor requires it during the day to go to work, the creditor can keep it during the night but must return it in the morning.
Such empathy in a legal system is truly incredible. But Jews did not deem it so unusual. Why? The reasoned that it was the logical derivative from a so-called fact of life.
Every evening we go to sleep. Our Maker takes our souls for the night during which we render to Him an account of what we did during the day. Except for the saints, most of us commit enough sins each day to warrant God's retention of our souls forever. But if He does not restore the souls to us in the morning, we would be unable to pursue our regular functions and perhaps sin less and even repent for prior sins. So He performs acts of charity and returns our souls. Shall a creditor do no less for a debtor than God does for almost all of us, day after day? This is illustrative of what a theocentric system of justice can yield - justice linked with mercy!
Needless to say, there are crimes that are so heinous that it is difficult for us to have compassion for those who committed them. The Adolf Eichmanns and Saddam Husseins, the Milwaukee killer Jeffrey Dahmer and others, evoke such disgust in us that we cannot forgive. But consider the following sentence in a letter to me by Jonathan Pollard: "I just felt that I had no other choice but to accept a level of personal risk commensurate to what was at stake. And if the truth be known, Rabbi, I'd rather be rotting in prison than sitting shiva for all the Israelis who could have died because of my cowardice."
Then ask what was missing in Caspar Weinberger's reaction to Pollard's crime -and what is missing in the hearts of those who want Weinberger's vindictiveness to prevail forever.
Rabbi Emanuel Rackman is the Chancellor of Bar-Ilan University, Israel.