“And it was on the following day and Moshe sat to judge the nation. And the nation stood before Moshe from the morning until the evening.” (Shemot 18:13)
One of Moshe responsibilities was to judge Bnai Yisrael. Legal disputes and questions regarding the law were brought to Moshe for resolution according to the principles of the Torah. Moshe executed this responsibility without assistance. Yitro, Moshe’s father-in-law concluded that Moshe’s method of judging the nation was not efficient. He suggested that Moshe establish a system of judges. These judges would resolve all simpler issues. Only the most difficult problems would be brought to Moshe. This suggestion was accepted and Yitro’s system was instituted. Our pasuk describes the scene that Yitro encountered and that caused his concern. Moshe would begin judging the people in the morning. The various petitioners would wait to consult with Moshe. The process would continue the entire day into the evening. Rashi quotes the comments of the Talmud in Tractate Shabbat. The Talmud explains that our passage should not be understood literally. Moshe did not actually spend the entire day executing his responsibilities as judge. Instead, the pasuk is alluding to the importance of justice. The message of the passage is that a judge may only require an hour to decide a case. However, if he decides a case in accordance with the truth, the mitzvah he fulfills is equal to studying the Torah the entire day. Furthermore, this judge is acting as the Almighty’s partner in Creation. The Talmud’s comments need some interpretation.
Why does this specific mitzvah judging according to the truth elevate the judge into partnership with the Almighty? The Torah tells us that the Almighty commanded Adam to conquer the earth. In other words, Hashem did not create the earth as a finished product. Instead, He charged humanity with the responsibility of creating civilization. The establishment of civilization completes the Almighty’s creation of the earth. In order for humanity to discharge this task, its members must live together in peace. Peace only exists in a society governed by justice. Therefore, the judge’s efforts are crucial to society and the realization of Hashem’s plan in Creation.
The Talmud, in Tractate Baba Metziah makes an amazing statement. The Talmud explains that Yershalayim was destroyed because its judges decided the law according to the Torah law and did not attempt to go beyond the letter of the law. These comments are difficult to understand. The Talmud in Tractate Shabbat praises the judge who decides the law according to the truth. Presumably, this requires the judge to make his decisions according to the laws of the Torah. Yet, the statement of the Talmud in Tractate Baba Metziah clearly indicates that merely deciding the law according to the precepts of the Torah is insufficient. The judge must seek a solution that goes beyond the letter of the law. He must search for a solution that is consistent with some greater truth. What is this greater truth beyond the requirements of the law that the judge must seek?
There is a related question that we must consider. According to the Torah, a dispute between two litigants can be resolved in two ways. The judge can decide the case on the basis of din law. Alternatively, the judge can offer p’sharah a mediated resolution. Which method is preferable? Our Sages teach us that a judge should always encourage the litigants to seek a p’sharah. However, this raises a question. What is the basis upon which the judge constructs the p’sharah? If the din indicates a specific outcome, how can p’sharah produce a decision different than the law? Certainly, the law is perfectly just. How can p’sharah produce an outcome superior to din? Rav Yitzchak Arama Ztl in his commentary Akeydat Yitzchak explores this issue. Akeydat Yitzchak explains that a system of laws is designed to deal with general issues. Laws indicate the response that is generally appropriate. However, because laws deal with general realities, they cannot assure an appropriate outcome in every circumstance. This is not because of a flaw in the specific legal system. This outcome is a consequence of the very nature of any system of rules. Consider the Torah’s prohibition against stealing. It punishes all stealing equally. It must be admitted that some theft is motivated by simple greed and other thefts are the result of extreme desperation. The person violating the law out of greed is more evil than the unfortunate person compelled to steal because of unbearable poverty. Yet, the law treats both of the violators in the same manner. Both receive the same punishment. The unfortunate, desperate thief does not receive any leniency from the law. This is not because the law is unjust. The law is a system of general rules. It does not recognize the specific details of every case. Based on this concept, Akeydat Yitzchak explains the comments of the Talmud. A judge can seek tzedek justice or chesed righteousness. A judge seeking tzedek decides each case according to the laws of the Torah. If he applies the laws accurately, he can be assured of producing a just outcome. However, the judge’s strict adherence to Torah law cannot assure that good and evil will receive their appropriate recompense. This is because the laws of the Torah are general. They do not take into account every possible specific circumstance relevant to the case. The judge cannot be sure that his decision is consistent with chesed. Chesed is achieved when the decision corresponds to the specific circumstances of the case. This requires going beyond the law.
We can now understand the role of p’sharah. P’sharah does not ignore the law. P’sharah recognizes the limits of any legal system. Through p’sharah, the judge attempts to adapt the general principles of law to the specific circumstances of the case. In short, p’sharah goes beyond the letter of the law. Its goal is to secure an outcome that is both just and appropriate to the specific case. The objective of p’sharah is chesed. This principle is not limited to monetary disputes between two litigants. When a judge is determining if a practice is permissible or prohibited issur ve’heter this principle applies. In other words, in resolving questions concerning kashrut, Shabbat or any mitzvah a rabbi a rav can approach the issue from two perspectives. He can seek tzedek or chesed. How do these two approaches differ? After hearing the question the rav can respond to the petitioner that the practice is prohibited or permitted according to the law. His decision will embody tzedek. However, it may not represent chesed. A chesed decision requires more of the rav. He must consider the specifics of the case. After considering these specifics, it may be appropriate to seek a solution rather than simply render a decision. A solution does not ignore the law. A solution seeks to resolve the issue strictly within the framework of halacha. However, a solution suggests a means by which the action can be performed in the permissible manner. In other words, chesed sometimes requires to the rav to respond, “What you want to do is prohibited. But here is a permissible way you can achieve your objective.”
We can now understand the comments of the Talmud in Baba Metziah. Moshe did not simply decide cases on the basis of tzedek. In every case, he stove to achieve truth. This is solution of chesed. The Talmud condemns judges who do not seek chesed but merely tzedek. According to the Talmud, this behavior contributed to the destruction of Yerushalayim.
“I am Hashem your G-d that took you out from the land of Egypt, from the house of bondage.” (Shemot 20:2)
This passage is the first statement of the Decalogue. Maimonides understands this statement as a mitzvah. We are commanded to accept the existence of Hashem. Rav Elchanan Wasserman Ztl explains that this conviction is easily achieved. The complexity of the universe gives witness to the existence of a Creator. Nonetheless, many deny the existence of Hashem. Rav Elchanan explains it is not the inadequacy of the evidence that causes these denials. Instead, there is a basic human bias that interferes with recognizing Hashem. Once a person accepts that there is a Creator, one is longer one’s own master. This Creator has the right to mandate action and demand obedience. Conversely, if one denies the existence of the Creator, one is free to act as one pleases. We do not need to answer to a higher authority. An interesting incident illustrates this point. There was a student of the Volozin Yeshiva that abandoned the Torah. Instead, he devoted himself to the study of philosophy and joined the Haskala movement. The student had occasion to visit his former yeshiva. There, he met with Rav Chaim Soloveitchik Ztl who was serving as Rosh HaYeshiva. Rav Chaim asked the young to explain his reasons for abandoning the life of Torah and pursuing worthless endeavors. The young man was shocked by Rav Chaim’s confrontational tone. After recovering, the young man responded. He explained that he was troubled by various doubts and questions regarding the Torah. He could not find answers for his questions. So, he abandoned the Torah. Rav Chaim told the young man that he was willing to answer every one of his questions. However, the young man must first agree to answer a single question. Rav Chaim’s asked, “When did these various questions occur to you? Was it before you experienced the taste of sin of afterwards?” The young man was embarrassed. He responded that only after committing a serious sin had he begun to be bothered by questions. Rav Chaim responded, “If that is the case, these are not questions. Rather, they are answers you sought to excuse your evil actions.” Rav Chaim continued, “I am sure that if you merit to achieve old age, your desires and yetzer harah will diminish. Then you will realize that you do not really have any questions. So, why not repent now?”