Saturday, July 9, 2011
The Place of Morality in Halacha
Should Halachic decisions be influenced by moral considerations? For example, in deciding between two litigants in a financial dispute, should a dayan take into consideration the moral rectitude of each litigant's position; or must his analysis be limited to strictly Halachic factors?
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What do you mean by moral rectitude, outside of halacha? While you could be a naval b'reshus ha'torah in bein Adam l'makom, l'chaveiro halachos like onaas davarim and hasagas gevul can be so broadly construed it's almost hard to not violate halacha in business
ReplyDeleteChoshen Mishpat contains very specific rules governing litigation of financial disputes. The question is whether a dayan is restricted to those rules or whether he is also permitted recourse to moral considerations.
ReplyDeleteCompletely outside of halacha? I wouldn't think so. Those are our laws.
ReplyDeleteThis is not even a religious question. US courts don't operate by the whim of what a judge or jury feels is moral, but by law. Some judges in drug possession cases with mandatory sentencing say they are unhappy sentencing a teen to 20 years for stupidity but their hands are tied.
I agree with SierraAlpha. Whatever the judge's moral considerations may be, what would give him the right to impose them on someone else. The court system is in place to decide civil matters within the halachic system (who rightfully own what, etc), not to enhance religious life.
ReplyDeleteWe find in halacha that one may be obligated to pay for something לצאת בידי שמים, this is something that though "morally required" (he did wrong), our system of Choshen Mishpat dictates that the court cannot enforce it.
My question is not whether moral considerations can be used to contravene Halacha, but whether it can be used for a situation not covered by Halacha or subject to a dispute between Halachic authorities.
ReplyDeleteI think halacha covers most situations, but if you really found a situation not covered by halacha, why are you discussing it in beis din? And we've come a bit far afield from 'a financial dispute'.
ReplyDeleteAnd no, it doesn't seem like a good way to answer disputes between halachic authorities, either. If you have a real dispute you take it to a modern posek, and he decides who to follow. Does he use morality to decide? Maybe, subconsciously probably. I'm not a posek, I don't know how they compartmentalize, it sounds hard.
Observant Jews are enjoined to go to bais din for all financial disputes. Although general principles are covered by Halacha, there are many "gray areas" where the Halacha can be compellingly interpreted both ways; the question here is whether moral considerations play a role in such matters.
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