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12.08.2019 14:36    Comments: 0    Categories: Weekly Parashah      Tags: torah  shabbat  parasha  devarim  vaethanan  rafi  vaaknin  

“Do what is right and good in the sight of the Lord

Much has been written on the meaning of this verse, and mostly it has been interpreted as referring to acts of kindness, to being charitable.  Below, we shall examine this assumption and suggest another approach, viewing it as a binding legal norm.

The well-known Talmudic story about Rabbah bar bar Hana and the porters is the most prominent, but not the only, midrashic source exploring the meaning of this rule.  Here we present the story as rendered by Rav Steinsaltz (Bava Metzia 83a):

Some porters (engaged to move a barrel of wine) broke a barrel of wine belonging to Rabbah bar bar Hana.  He thereupon seized their cloaks (in order to retrieve the value of the wine that had been lost).  They came and complained to Rav (the judge), who said to him, “Give them back their cloaks!”  “Is that indeed the law?” he said.  “Yes, for it is written:  So follow the way of the good (Prov. 2:20).”  Their garments having been returned, they said to him (to the judge), “We are poor and have worked all day long; we are hungry and have nothing.”  He said to him, “Go pay them their wages!”  He said, “Is that indeed the law?”  “Yes,” he answered, “for it is written:  and keep to the paths of the just (ibid.).”

This surprising ruling causes some wonderment.  To begin with, Rav exempted the porters from paying for the damage they caused, and Rabba b. b. Hana wondered at this:  is this indeed the law?  Rav answered briefly and unequivocally:  yes, giving as the reason the verse, “So follow the way of the good” (Prov. 2:20).  Having received this answer, the defendant had no choice but to comply:  he returned them their cloaks.

The porters’ unexpected victory did not satisfy them, and they embarked on a second round of claims against Rabbah b. b. Hana, also leading to a ruling in their favor:  pay them their wages.  And again Rabbah b. b. Hana expressed surprise:  “Is that indeed the law?”  Rav held his ground:  “Yes.”  This time the reason for his ruling was the second half of the verse mentioned above:  “and keep to the paths of the just” (Prov. 2:20).

Rav’s ruling was not by way of good advice or charity, rather a ruling according to the law.  He ruled in favor of the workers because that is what the law demanded, not just to be proper morally and religiously, but because that was the legal norm which the court had to enforce, as Justice Menachem Elon wrote:[1]

Rav gave his response after having been asked whether that was indeed the law.  He did not explain to Rabbah that he meant to indicate such was not required by law.  Therefore, many rabbinic experts in Halakhah after the period of the Talmud concluded that Rav’s ruling on this matter was entirely of normative significance.

As Rav Kook put it:[2]

The principle of ruling compassionately and not by the strict letter of the law sometimes becomes a part of the law.

It seems that the words, “Is that indeed the law?” as uttered by Rabbah b. b. Hana, were not meant as a question but as expression of amazement at the surprising innovation in Rav’s ruling, turning the moral principle of “following the way of the good and keeping to the paths of the just” into law; in other words, putting moral values above legal ones.

Jonah Frankel, who addressed this question in his discussion of the relationship between halakhah and aggadah, stated decisively:[3]

Clearly all the statements and stories about acting “more leniently than the letter of the law” and of “not being liable by human law, but liable in the eyes of Heaven,” and “being exonerated by Heaven” are not later responses to an existing halakhah, rather they are part of the halakhah in the very process of coming into being.

Henceforth we may say:  acting leniently is the law, and “doing what is good and upright” is a commandment.  Not to say that it is a commandment in the compiled list of commandments, but a super-commandment, hovering above all the commandments and determining their spirit, as Nahmanides interpreted the verse at hand.  He said:

Here the rabbis had a fine interpretation.  They said:  This refers to compromise, finding more leniently than the strict letter of the law.  What is meant by this is that from the outset we are told to obey the laws and statutes that He commanded us, but now we add to this:  also with regard to that which He did not command us, set your mind to doing that which is good and right in His eyes, for He desires that which is good and right.  Now this is no small matter, for the Torah could not possibly mention every situation that might arise between a person and his neighbors or fellows, and all manner of negotiations and regulations of all localities and states.

In other words, the six hundred and thirteen commandments do not encompass all the situations that might actually arise in a person’s life, and therefore, also with respect to that which the Torah did not explicitly command, a person must set his mind towards behaving as would be good and proper in the eyes of the Lord.  The injunctions, “You shall do what is right and good” and rule “more compassionately than the strict letter of the law,” are to be considered as positive commands and not merely a good way to behave or a mark of especial piety.

A similar principle is reflected in the law, “If you take your neighbor’s garment in pledge, you must return it to him before the sun sets; it is his only clothing, the sole covering for his skin.  In what else shall he sleep?” (Ex. 22:25-26).  The Torah cautions us against taking a poor person’s clothing even when entitled to, for a pledge is given to the lender so that it remind the borrower of his debt day in and day out, until his debt be paid up, and as long as the borrower has not repaid the loan, the lender may legally keep hold of the pledge.  Nevertheless, he is commanded to return the pledge every evening because the borrower would otherwise have nothing in which to sleep.

Alongside the dry, formal law come words directed at our emotions:  “In what else shall he sleep?”  This appeals to the lender’s heart, “for the chilliness at night hurts him,”[4] and is part of the law.  The compassion that is asked for here is not optional, rather required by halakhah.  There might seem to be tension here between morals and law, between sentiment and norms, but the spirit of the text says that moral values and feelings stand above legalistic values.

The command to “do what is right and good in the eyes of the Lord” is a general injunction designed to prevent individuals and society from wrongdoing and perversion of the law as a result of strict adherence to legal formalism, demanding “justice under all circumstances.”  This injunction makes it obligatory on the judge to administer the law with humanity and sensitivity.  The Torah’s commandments, “nor shall you show deference to a poor man in his dispute” (Ex. 23:3) and “do not favor the poor” (Lev. 19:15), do not contradict the requirement that one treat the poor with compassion and mercy.

The midrash comes out sharply against judges who adhere strictly to the formal letter of the law and do not show mercy; it says things which are hard to repeat, except that they were said by the Sages:

But I returned and considered all the oppressions (Eccles. 4:1).  Daniel the Tailor interpreted the verses as applying to bastards.  And behold the tears of such as were oppressed (ibid.).  If the parents of these bastards committed transgression, what concern is it of these poor sufferers?  So also if this man’s father cohabited with a forbidden woman, what sin has he himself committed and what concern is it of his?  And they had no comforter (ibid.), but On the side of their oppressors there was power (ibid.).

This means, on the side of Israel’s Great Sanhedrin which comes to them with the power derived from the Torah and removes them from the fold, in virtue of the commandment, A bastard shall not enter into the assembly of the Lord (Deut. 23:3).  But they had no comforter (ibid.).  Says the Holy One, blessed be He:  “It shall be My task to comfort them.”  For in this world there is dross in them, but in the World to Come, says Zechariah, I have seen them all gold, all of them pure gold.[5]

By the laws of the Torah, bastards may not marry and be admitted into the Jewish community.  Their outcry is taken up by the midrash because they suffer through no fault of their own, but because of the sins of their parents.  The Sages of the midrash sought to convey an audaciously important message in this regard:  a court that acts by Torah law, according to the commands in the Torah, is a court that “oppresses.”[6]

A court that applies to bastards the rule prohibiting them from “entering into the assembly” and does not find a way around the laws of the Torah by invoking other laws of the Torah in order to find these people eligible, is called a court that “oppresses,”[7] because it is forbidden to let the law overrule compassion and morality.  Without mercy and compassion, without being more lenient than the letter of the law, no society can stand.

 
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