Sanhedrin 006

Today's shiur is dedicated to our representatives on the Ne’eman Commission, Rabbis Reuven Hammer and Ehud Bandel – in recognition and gratitude.

Quite often it happens that one of our participants contacts me with a real-life halakhic question that derives from the material we have been studying. One such example is a message I received from Wendy Morrison. Wendy is a music teacher and has an arrangement with her students according to which payments for lessons that were not canceled in advance would not be refundable (on the assumption that such time is now "dead time" and there is a market value for a professional's time). I gave Wendy my tentative response, which need not detain us here. However, at the end of my response I added the following:

However, one of the glories of the halakhic juridical system is that it recognizes that more often than not there is no such thing as absolute justice. Halakhah would recommend in such a case that both parties try to reach an agreed compromise, which the court would then ratify.

That statement was made, of course, in the context of Dinei Mamonot – where one party is suing the other for damages. In its discussion on this topic, the Gemara [Sanhedrin 6a, at the very bottom of the page] lends a more universal and ethical tone to the issue – and to my mind it is this very aspect that makes it so apposite as food for thought concerning issues that are on our public agenda at this time.

Our mishnah stated categorically that "civil suits [Dinei Mamonot] are heard before three judges". The Gemara now quotes a baraita (that originates in Tosefta Sanhedrin 1:3):

(For an explanation of technical terms such as Gemara, Baraita and Tosefta please consult the "Introduction" in our website archives. For details see the blurb that comes after each shiur)

This leads to a discussion on the ethics involved:

In this passage (originating in the Sifré, a halakhic midrash on the book of Devarim) two opposing views are discussed. Moses is conceived as the prototype for the demand for absolute justice: even if the demands of justice require a mountain to be split in two – let justice be done; compromise is anathema to a sense of justice – and justice comes from God [Deuteronomy 1:17]. On the other hand, Moses' brother, Aaron the High Priest, is seen as one who believes that peace (which is a Hebrew word that also has tones of harmony, goodwill and wellbeing) – can only be achieved through a compromise in which both sides have to cede something. Thus we see two supreme values being contrasted here: Justice and Peace (compromise). The Gemara continues:

Rabbi Yehoshu'a ben-Korĥah presents the very opposite view to that propounded above by Rabbi Eli'ezer, the son of Rabbi Yosé ha-Gelili. The demands of justice must be tempered with the requirements of equity and peace.

When one party sues another true justice probably lies somewhere between the two claims, but both see their positions as being "absolute". If one strives for strict justice, one party will emerge triumphant, but the other might well feel that they have been wronged. Where a compromise can be effected between the parties, neither will achieve all of their demands, but both may achieve some of their demands – and neither can feel completely wronged.

Of course, there are limits that must be set to the propriety of a judge suggesting a compromise between the litigants. The Gemara [Sanhedrin 6b] quotes Rabbi Shim'on ben-Menasya as saying that

We can now return to the discussion in the Gemara on these two opposing views: that of Rabbi Eli'ezer, the son of Rabbi Yosé ha-Gelili, favouring strict justice and that of Rabbi Yehoshu'a ben-Korĥah favouring an attempt at compromise.

Thus the Gemara decides that a compromise between the contesting parties is preferable to each of them standing upon their right to maintain the integrity of their separate claims.

There is now quite a backlog of your comments and queries, so more of them in our next shiur.