Doing the Good and the Just
This week’s parashah includes a Pasuk whose instruction has profound ramifications in Torah monetary law: “You shall do the just and the good” (6:18).
The Ramban explains the rationale that stands behind this instruction. He writes that the Torah cannot relate to all cases and eventualities that might arise in interpersonal relationships. Therefore, the Torah covers all corners with a general instruction of acting in fairness and justness. In all his ways, the Jew is bound to the “just and the good.”
The Sages use this general instruction to derive a number of specific injunctions.
An example of this is the law of bar metzra (Bava Metzia 108a). According to biblical law a person has the right to sell his field to whomever he wishes. Yet, based on the directive of performing the just and the good, the Sages declared that a person owning the neighboring field must be given first rights to buy the land. A neighbor stands to gain more from the land than a stranger (he can plough both fields together), and he must therefore be given first rights of purchase.
Note that this law applies only when the neighbor offers the same price as other buyers; the obligation to act justly does not include (at least in this case) a requirement to lose potential income.
Another application of the principle is the law of shuma hadar. If a creditor collects a loan from a debtor’s enslaved property, there is no biblical law that empowers the debtor to redeem the property. Yet, based on the same principle of doing the just and the good, the Sages enacted that a debtor has the right to redeem his collected property from the creditor (see Choshen Mishpat 103 for circumstances where this principle applies). As a creditor, a person must know that permitting the debtor to redeem his property is worthy conduct.
These examples reflect the nature of Jewish Law as a “total way of life”. The word Torah means instruction, and this is precisely what the Torah is: a source of instruction that can bear on every dilemma a person might face.
Beyond the Letter of the Law
Beyond these examples, Rashi and the Ramban find another directive in the instruction of performing the good and the just: lifnim mishuras hadin, going beyond the letter of the law.
Chazal[O1] connect this concept with the destruction of the Temple: “Rabbi Yochanan stated: Jerusalem was only destroyed because the people judged with Torah judgment. Does this mean they should judge a corrupt judgment? Rather, [Jerusalem was only destroyed] because they judged Torah law, and did not go beyond the letter of the law.”
We thus learn the great importance of going beyond the letter of the law: Even when the letter of the law commands a particular ruling, a person must not be satisfied with performing the law itself, but must seek to go lifmin mishuras hadin.
The parameters of this concept require elucidation. To speak of an “obligation” to go beyond the letter of the law comes over as a contradiction in terms: Surely, going beyond the letter of the law is by definition optional, and not part of the law. As we will see, however, some authorities write that one can obligate and even enforce going beyond the letter of the law.
In the present article we will seek to elucidate the matter and demonstrate its application.
Examples of Going Beyond the Letter of the Law
The principle of going beyond the letter of the law occurs in the Gemara in a number of places.
- Returning Lost Property: One of the prominent halachic concepts in which the principle is mentioned in the matter of returning lost property (Bava Metzia 24b). The Gemara discusses the case of an item that is found in a market that is mainly frequented by non-Jews. It can be assumed that the owner[O2] of the item has lost hope of recovering it, and the halachah is therefore that the finder can keep it for himself. Yet, the Gemara states that a person should go beyond the letter of the law, and return it to the person who provides simanim (signs that prove his ownership).
The Shulchan Aruch (Choshen Mishpat 259:5) thus rules: “Although the letter of the law dictates that items found in a place where there is a majority of non-Jews need not be returned even when a Jew provides simanim, one should nonetheless perform the good and the just, going beyond the letter of the law to return the item to the person who gave a siman.”
- Sharing the Load Despite Exemption: The Gemara (Bava Metzia 30b) relates the following incident:
“Rabbi Yishmael the son of Rabbi Yosi was traveling on a road. He met up with someone who was carrying a load of wood. The person set his wood down, and got set to reorganize his load. He asked Rabbi Yishmael: “Please load the wood onto me.” Rabbi Yishmael replied: “How much is the wood worth?” The man replied: “Half a zuz.”
Rabbi Yishmael proceeded to buy the wood from the man (so that he could avoid loading the load onto him, which was not an honorable thing for him to do). He gave him half a zuz, and then proceeded to declare the wood ownerless. The man reacquired the wood, and Rabbi Yishmael bought it from him again for another half of a zuz, and declared it ownerless again. When Rabbi Yishmael saw that the man was going to reacquire it a third time, he told him that he had declared it ownerless for everyone besides him.”
The Gemara proceeds to question the behavior of Rabbi Yishmael: “Was not Rabbi Yishmael an elder, about whom the Torah says that he does not have to do this if it is not according to his honor?” The Gemara answers: “Rabbi Yishmael was going beyond the letter of the law.” Although Rabbi Yishmael was formally exempt from assisting the man in loading the wood, he nonetheless felt obligated to help – or to purchase the wood, thereby avoiding the obligation – lifnim mishuras hadin.
The Gemara explains that the principle of going beyond the letter of the law is derived from the verse: “And you will inform them the way they will go in it, and the action that they will do” (Shemos 18:20). They words “that they will do” refer to going beyond the letter of the law.
The principle of going beyond the letter of the law in loading a load is ruled by the Shulchan Aruch (Choshen Mishpat 263). According to the Rema, an elder for whom it is disrespectful to load a load may not participate in loading the load, for involves a denigration of his Torah wisdom. Rather, if he wishes to go beyond the letter of the law he should act as Rabbi Yishmael did, avoiding the obligation by buying the load.
- Damage Compensation: The same verse (the words “that they will do”) is employed by the Gemara (Bava Kama 99b) to derive the halachah of going beyond the letter of the law concerning damage compensation. The Gemara relates that Rav Chiya, who was an expert banker, was consulted concerning the authenticity of a particular coin. Rav Chiya responded that the coin was authentic, but it turned out that the coin was counterfeit, causing the client a loss. According to the strict letter of the law, Rav Chiya was exempt from compensating for the loss (only a non-expert banker is obligated in paying compensation). However, he paid for the damage, lifnim mishuras hadin.
The Case of Rabba’s Porters
The Gemara (Bava Metzia 83a) relates of how Rabba bar bar Chana’s porters broke one of his barrels of wine. Rashi explains that they were negligent in this, and clearly liable for damages. Rabba claimed their cloaks as compensation. The porters went informed Rav of the incident, who instructed Rabba: “Give them back their cloaks.” Rabba bar bar Channa asked, “Is this the law?” knowing that they were liable for the damage. Rav responded: “Yes,” quoting the verse in Mishlei (2:20): “So that you walk in the way of the good.”
Rabba gave back their cloaks, whereupon the porters said to Rav, “We are poor, we worked all day; we are hungry and we have nothing.” Upon hearing their complaint, Rav instructed Rabba to pay them their salary! Once again, Rabba questioned the ruling: “Is this the law?” The porters were contractors, who were paid for doing their job, and certainly had no legal claim on their salary. Rav replied: “Yes,” quoting the second half of the same verse: “And you should watch the path of the righteous.”
Clearly, the ruling of Rav went beyond the letter of the law. Tosafos (Bava Metzia 24b) explains that it was nonetheless not included in the regular concept of lifnim mishuras hadin, because it involved a concrete monetary loss: Rabba had to forego his claim to damages, and pay his workers money that they did not deserve. This goes beyond the above concept of lifnim mishuras hadin, which involved no actual loss (giving back lost property is not considered an actual loss; also, as noted one need only sell the land to a neighbor if he matches the highest alternative price).
Enforcing Lifnim Mi-Shuras Ha-Din
The above case of Rabba’s porters appears to demonstrate another important aspect of lifnim mishuras hadin. Rather than the recounting the righteous conduct of an individual, the Gemara appears to imply that the beyond the letter of the law can sometimes be enforced on others. Indeed, the Mordechai (Bava Metzia 458) writes, based on the account of Rabba, that Beis Din enforces going beyond the letter of the law, citing a number of authorities in support of the ruling.
As noted above, an obligation to go beyond the letter of the law appears to be a contradiction in terms. If we are going beyond the law, surely the practice cannot be deemed obligatory?
According to the Mordechai, however, this “obligation” is included in the Torah’s instruction to “do the just and the good.” Doing the just and the good depends on circumstances, and on the people involved; the “just and the good” of one is not necessarily the ‘good and the just’ of another. However, where Beis Din deem it justified, they have the right to enforce the matter.
Indeed, the Mordechai himself makes an important distinction in this matter between the poor and the rich. If a rich person finds an item of lost property, he must go beyond the letter of the law in returning it to its owner (such as in the case mentioned above). However, if a poor person finds an item of lost property, and halachah permits him to keep it, it is not incumbent on him to return the item to its (rich) owner. The approach of the Mordechai is mentioned by the Rema (Choshen Mishpat 12:2; 259:5; see also Shut Rema no. 32).
Partiality to the Poor
Based on the verse, “You shall not be partial to a poor man in his dispute” (Shemos 23:2), RavSaadiahGaon appears to negate the possibility of Beis Din ruling a case lifnim mishuras hadin:
“That which the early authorities term “ways of the good and paths of the righteous” – it is an obligation to follow this. However, this obligation applies specifically to the litigants, and not to the judge. The judge must not add or detract from his judgment, and must not pervert, so as not to warp the Scriptural statement: “Do not pervert judgment; do not raise the face of the poor” (Sefer Ha-Pikadon).
It appears that this basic ideology is at the heart of the ruling of the Shulchan Aruch (Choshen Mishpat 259:5), who writes that there is no distinction between the rich and the poor in matters of returning lost property lifnim mishuras hadin. Moreover, the Shulchan Aruch (12:2, based on the Rosh) rules that Beis Din cannot enforce a ruling that goes beyond the letter of the law. The Beis Yosef explains that this is simple: If the ruling goes beyond the law, how can it be enforced?
Rema, as noted, does not concur: Even when it goes beyond specific laws, Beis Din has the right to enforce the general principle of doing the good and the just. Note, however, that some authorities (see Shevus Yaakov 1:168) understand this to refers only to verbal enforcement, and not to enforcement by beatings or other physical means (see also Tzemach Tzeddek 89).
The Consolation of Jerusalem
The Gemara teaches that the SecondTemple was destroyed as a result of baseless hatred. Yet, as we noted above, the Gemara also writes that Jerusalem was destroyed because the people enforced strict judgment, and were unprepared to go beyond the letter of the law. The two, it appears, go together (see Tosafos, Bava Metzia 30b).
When questions of neighbors and partners arise, it is all too easy to raise indignant demands for “justice” and for “judgment.” However, the same “righteous” demand for strict judgment caused the destruction of Jerusalem! Much wisdom and discernment is required to know when to demand and apply strict judgment, and when to go beyond the letter of the law.
Yet, both as judges (according to some) and individuals, it is incumbent upon us to know that the line of the law (shuras hadin) is not a line that can never be crossed. Sometimes, we are duty-bound to cross the line of the law, and to ensure that we perform the “just and the good.”
