Law and Morality
LAW AND MORALITY
In the Bible
In the Pentateuch, legal and moral norms are not distinguished by any definitional criteria. The manner of presentation of both is via revelation – moral norms are not presented as wisdom but rather as prophetic revelation. Thus the two remain indistinguishable as to authority. The basis of adherence to the system as a whole is the fact that it constitutes divine command. Even in the form of presentation, no distinction is made between the two types. The apodictic form, for example, is used both for the prohibition on murder (Ex. 20:13) and the command to love one's neighbor (Lev. 19:18). On the critical issue of enforcement, no textual distinction exists on which to base enforced and nonenforced forms or between humanly enforced and divinely enforced ones. The premise of the pentateuchal code is that no propounded norm of human behavior is either optional or lacking in enforcement. Indeed the sanction system is one in which human punishment and divine retribution function as equal components of a single scheme.
This single corpus of legal-moral behavioral norms was distinct from ancient Near-Eastern legal-moral systems in a number of significant respects. First, the very unity of morality and law in the Pentateuch created a new basis of authority for the behavioral precepts of Hebrew civilization. Secondly, in the Torah individualistic morality gave way to national morality which was addressed to the people of Israel as a corporate moral entity. Thus the national entity was made party to the maintenance of the mandated standards of behavior and could be held responsible for the breach of such norms by individual citizens. Thirdly, despite the exclusivity of the covenantal relationship between God and the Jewish people, God's role in the enforcement of legal-moral behavioral norms is clearly pictured as universal. Thus Cain, the generation of the flood, Sodom, the seven Canaanite nations, and others, are all pictured as subjects of divine retribution for illegal-immoral behavior though they were not parties to the covenant.
In the prophetic literature, no new realm of purely moral concern was created. The breaches of social morality which play such a prominent part in the prophetic critique of the Jewish people were all premised on the identical legal-moral behavioral norms. The "immorality" of the people was in reality their "illegal" behavior. The major shift which distinguishes the literary prophets from their predecessors was that the notion of corporate legal-moral responsibility was given a vital new component. In the Pentateuch, national doom was threatened for cultic sins in particular and for neglect of the divine commandments in general. The prophets introduced the notion that the most decisive factor in the corporate fate of the nation was that aspect of mandated legal-moral behavioral norms which encompassed social relations. Thus when Amos threatens national doom and exile, he speaks of the sins of the normal life context, of social, economic, and political behavior, but maintains complete silence with regard to the sin of idolatry. In Isaiah and Micah too, the threat of national destruction is created by social corruption – the violation of the legal-ethical behavioral norms of everyday life. Failure to observe the divine command results in the corporate punishment of the nation whether the sin is cultic or legal-moral in nature.
The Talmudic Period
There was not yet any development of a specific moral order as distinct from the legal system in the talmudic period. However, it is already clearly recognized in tannaitic literature that legal sanctions could not enforce every form of behavior which was morally desirable. Indeed the Mishnah and Tosefta make occasional references to situations where, despite justification, one party lacks any legal recourse against the other and "… he has nothing but resentment [taromet] against him" (e.g., bm 4:6, 6:1; Tosef., Git. 3:1; bm 4:22). This recognition of a gap between sanctionable behavior and behavior which though desirable is not enforceable produced three types of relationships between the two realms: morality as a direct source of law; morality as a source of private, higher standards of legal liability; and morality in legal form.
morality as a direct source of law
The tannaitic period was particularly rich in social legislation motivated by the desire to expand the scope of enforcement to encompass as broad as possible a range of morally desirable behavior. Two terms in particular were often used to indicate the presence of a moral interest as the basis for tannaitic legislation:
(1) "In the interest of peace" (mi-penei darkhei shalom). This term is a composite, indicating that the legislative purpose of the statute is the prevention of communal conflict which would result from some immoral practice not otherwise limited by law. The specific forms of immoral behavior viewed by the tannaim as likely to produce communal conflict included unequal distribution of religious honors, threat to the good reputation of a group or an individual, taking by force where property rights are uncertain, unearned benefit from the labor or initiative of another, and the exclusion of groups from societal privileges and responsibilities. In all of these instances, the methods used to avoid the conflict were either to legalize a status quo which was both orderly and fair, or to extend legal rights to situations or persons otherwise excluded (e.g. Git. 5:8–9; Tosef., Pe'ah 3:1; Ḥul. 10:13; Git. 5 (3):4–5).
(2) "For the benefit of society" (mi-penei tikkun ha-olam). This tannaitic term is also a composite, reflecting the presence of a moral interest being translated into an enforceable legal norm. The Mishnah (Git. 4:3–5:3) contains an entire codex of such statutes. The unique character of the situations governed "for the benefit of society" is that the moral interest involved, while produced by an existing or incipient legal relationship, affects primarily persons outside the relationship itself. The legislation affecting that relationship is thus primarily designed to have general communal benefit. Some of the moral interests dealt with in this type of legislation are the prevention of *bastardy and of abandoned wives (see *Agunah), the deterrence of *theft and of non-punishable injurious behavior, the encouragement of lending and of returning lost property, the encouragement of care for *orphans and destitute children, and the encouragement of public service in the area of law and medicine (e.g., Git. 4:2–5:3; 9:4; Tosef., Ter. 1:12–13; Git. 4(3):5–7; 8(6):9).
The amoraim did not themselves use darkhei shalom or tikkun ha-olam as bases for further translation of morality into law. However, their awareness that in tannaitic legislation morality was being used as a source of law is clearly indicated through their use of the notion of the prevention of hostility (mi-shum eivah) as a legislative end. While no legislation in tannaitic literature is described as having been designed to prevent hostility, the amoraim often ascribe that very purpose to tannaitic legislation. Thus tannaitic legislation giving a *husband the right to his wife's earnings is viewed by the amoraim as motivated by the desire to prevent ill-feeling or hostility (eivah) between them (Ket. 58b). The source of the ill-feeling would be the inequality resulting from the husband's being obliged to support his wife without being entitled to ownership of whatever she earns. This recognition that legislation based on the tendency of ill-feeling to undermine an existing relationship was an attempt to cure legislatively the underlying inequality led the amoraim to limit the application of the statute to those situations where its motivating moral interest was relevant. Thus where the marital relationship is in any case about to be terminated, ill-feeling may be a matter of indifference (bm 12b), and further, where the relationship must be terminated by law, ill-feelings between the parties may actually be functional (Yev. 90b) and therefore the law designed to prevent such hostility is inapplicable.
The role of morality as a source of law continued into the legal work of the amoraim themselves, although it shifted from the realm of legislation to that of juridical interpretation. Two standards of moral behavior, one positive and one negative, predominate in this amoraic process:
(1) "And thou shalt do that which is right and good" (Deut. 6:18; ve-asita ha-yashar ve-ha-tov). Two amoraic laws are based on this verse:
(a) Property taken by a creditor in payment of a debt may be redeemed at any time (i.e., absence of injury to the creditor; bm 35a; see *Execution, Civil); and
(b) Right of an abutting property owner to first purchase is preserved despite sale of the property (i.e., absence of injury to the original owner; bm 108a; see *Maẓranut). In both casesdoing the "right and good" involves the restoration of a legal right which a person had lost through no fault of his own.
(2) "Her ways are ways of pleasantness" (Prov. 3:17; dark-hei no'am). The fact that "pleasantness" was viewed as a basic characteristic of biblical law dictated to the amoraim the rejection of any juridical interpretation which could lead to the establishment of a law that could cause either the loss of personal dignity or injury to a marital relationship (e.g., Suk. 32b; Yev. 15a). The principle, however, operated in a negative fashion only, to preclude any particular juridical alternative which contravened the moral qualities of "pleasantness" (see also *Takkanot).
morality as a source of private, higher standards of legal liability.
There are occasions which arise in any legal system where, despite the existence of a law prohibiting certain action, the hands of the court are tied because of evidentiary or procedural principles. The absence of enforcement in such instances, while producing an inequity in that particular case, could only be remedied by the abandonment of a principle which on balance is of value to the legal system. In the attempt to minimize such injustice, the tannaim, and subsequently the amoraim also, attempted to use the threat of divine retribution as a means of inducing the wrongdoer to remedy the injury of his own free choice, rejecting the exemption which the system allows him (see *Divine Punishment). It was in this specific context that the rabbis often asserted that while the defendant was "exempt by human law, he is liable by divine law" (ḥayyav be-dinei shamayim; e.g., bk 6:4. An entire codex of such situations where "his case is passed on for divine judgment" is found in Tosef., bk 6:16–17). A similar case of moral pressure being brought to bear to emphasize the need for voluntary rectification where the judiciary is unable to act is reflected in the phrase "the sages are greatly pleased with him" (ru'aḥ ḥakhamin noḥah heimenno; e.g., Shev. 10:9. For the reverse formulation, see bb 8:5). The moral pressure for this type of behavior led the amoraim to use similar formulations to urge self-judgment even in cases where the initial liability itself was in doubt (bm 37a; see *Extraordinary Remedies). In such cases the amoraim suggest that a man assume liability upon himself if "he wishes to fulfill his duty in the sight of heaven."
Two uniquely amoraic devices supplement the above as moral means of urging an individual to accept higher standards of civil liability where he has indeed been the cause of injury to another. Both are literary legal fictions in that they attempt to explain tannaitic statements or actions which in reality might have been based on completely different reasons.
(a) Pious behavior (middat ḥasidut). Each time that the amora Rav Ḥisda suggests that a particular tannaitic statement constituted a suggestion of especially righteous behavior it is part of an attempt to resolve an inner contradiction in a Mishnah (e.g., bm 52b; Shab. 120a; Ḥul. 130b). While the Talmud on one occasion rejects R. ḥisda's suggestion for some alternative resolution (Shab. 120a), the device itself, and its frequent acceptance by the amoraim, gives recognition to their use of moral persuasion to encourage private adoption of the highest possible standards of civil liability. Indeed R. Ḥisda may well have been pointing out a more general phenomenon, that of recording dissenting opinions in the Mishnah in order that such higher standards remain as a personal option.
(b) Beyond the limit of the law (li-fenim mi-shurat hadin). This device too, emerging from the school of Rav, is used consistently to resolve the disparity between existing law and the behavior of some earlier scholar (e.g., bk 99b; bm 30b; Ket. 97a; Ber. 45b). While it may be the case that in each instance the scholar behaved in full accord with the law of his own time, the exemption from liability not yet having become applicable, the significance of the amoraic suggestion lies in its openness to the acceptance and desirability of such private assumption of higher standards of legal liability. Indeed, by eradicating the time difference between the existing law and earlier behavior, the amoraim in effect maintain the viability of the entire history of legal development as a source of rules devised to produce the result most morally desirable in any particular case. While in their talmudic usage none of these devices leads to enforceable law, many rishonim and aharonim insist on the partial or total enforceability of a good number of the laws denominated as dinei shamayim, middat ḥasidut, and li-fenim mi-shurat ha-din (e.g., RemaḤm 12:2; pdrs: 132–153, 151). Thus, while formal legislation was basically absent and no admission would be made that juridical interpretation really involved the creation of new law, such reinterpretations to create higher standards of enforceability were in fact part of the continuity of the process of the use of morality as a source of new law. In this way the use of morality to create private, higher standards of liability has often led to the eventual adoption of those new standards as law for everyone.
morality in legal form
The impact of morality on Jewish law has been felt in a third way, as a result of rabbinic formulation of moral principles in legal form. The unwillingness of the rabbinic mind to accept seriously any substantial gap between the two realms is evidenced by the gradual assimilation into the realm of law, of forms of behavior which were not initially enforceable but were formulated in the terminology of illegal behavior. The two prime categories in this pattern are where immoral behavior is compared to illegal action and where the seriousness of the behavior is indicated by a disproportionate penalty.
(1) "As if …" (ke-illu). The term ke-illu, in its legal usage (like na'asah ke), usually introduces a legal fiction (bm 34a; Yev. 13:3). In its usage in the process of grading the moral significance of behavior it creates fictional analogies to legal or illegal behavior. Thus a person who conducts himself with humility is as one who offers all the sacrifices (Sot. 5b), while one who honors an evil person is as one who worships idols (Tosef., Av. Zar. 6(7):16). In tannaitic usage, this device is used almost exclusively to encourage behavior which is not legally mandatory (except where it is used in exegesis in the form, "Scripture considers him as if …"; e.g., Sanh. 4:5). In such instances, the weight of the divine legal prohibition is used to bolster moral pronouncements which otherwise lack any authority. The fact that amoraim began to extend this comparative device to add the weight of divine law to the authority of rabbinic law (e.g., Ber. 35a) introduced the possibility that the first half of the formula was not merely unenforceable moral teaching, but was itself legally binding in its own right. It was then only a short step to the frequent conclusions of rishonim that behavior which is compared to illegal action must itself be illicit (e.g., Sot. 3:4; cf. Yad, Talmud Torah 1:13).
(2) Disproportionate penalty, such as "liable to the death penalty" (ḥayyav mitah). While the Bible lays down the penalty of death at the hands of the court for a variety of crimes, the tannaim had already begun using the ascription of the death penalty to crimes for which clearly no court would prescribe such punishment. This exaggerated penalty was an effective way of communicating rabbinic feelings about the enormity of misbehavior. The amoraim made extensive use of this device to indicate their indignation at immoral behavior. Thus, in a passage which makes manifestly clear that it is aimed at emphasis rather than true legal liability, the Talmud says, "A mourner who does not let his hair grow long and does not rend his clothes is liable to death" (mk 24a). Similarly the rabbis asserted that, "Any scholar upon whose garment a [grease] stain is found is liable to death" (Shab. 114a). Again, however, the very use of legal terminology in formulating the moral position led to the conclusion that the behavior so described was indeed legally prohibited, and it was therefore often considered as this by the rishonim (cf. instances in Sanh. 58b, 59a, and codes). Thus in the constant growth of the scope of the law the morality of one generation frequently became the law of the next.
[Saul Berman]
Moral Sanctions of Legally Negative Acts
In addition to the three categories mentioned above, there is a fourth category that regulates the interaction of law and morality in Jewish Law. In these cases the sanction for an action is only a moral sanction. The common context for such sanctions is the exploitation of a legal loophole for benefit, while damaging the interests of others. The legal system disapproves of such acts, but does not view them as sufficiently reprehensible to warrant punishment for their commission. However, although the perpetrator of such acts is called "wicked," the halakhic sanction does not involve financial loss nor corporal punishment. Hence the perpetrator of certain acts is called "wicked," and other acts cause their perpetrator to be subjected to the imprecation of "He who punished."
"he is called wicked"
The laws of succession present an example of an act, which when committed causes the perpetrator "to be called wicked." The case concerns a person who bequeathed his estate to an heir, stipulating that upon his [the heir's] demise, the estate would devolve to a second heir. The tannaim disputed the nature of the rule of succession and how it would apply if the first heir sold the estate, thus defying the testator's wishes. R. Judah ha-Nasi ruled that after the first heir dies, the second heir would be entitled to reclaim the property from the person who bought it from the first heir. R. Simeon b. Gamaliel however claims that, "The second [may] receive only what the first had left" and if he did not leave anything, then the second heir would be left empty handed (bb 137a). The halakhah was established in accordance with the latter opinion (Yad, Zekhiyyah u-Matanah 12:3–5; Sh. Ar. Ḥm 248:1). The sages expressed their disapproval of the person who counseled the first one to defy the testator's stipulation and sell the assets, for by so doing he was frustrating the testator's wish, which was that the second person too would benefit from his assets, when the time came, "And Abbaye said: 'Who is a cunning rogue? One who counsels another to sell an estate in accordance with Rabban Simeon b. Gamaliel'"(bb, ibid.). The Rashbam (ibid.) explains that such a person is referred to as "cunning" because his acts are legally valid, but by exploiting the legal loophole left by the testator who allowed the first heir to sell the assets, he commits a sin with property not lawfully his, and the result frustrates the original intention of the testator.
In the Moston case (ca 749/82 Moston v. Widerman 43 (1) pd 278, per Justice Elon) the Supreme Court was required to interpret the Succession Law, 1965. The Court also dealt with relation of law and morality in that context, and wrote the following:
Incidentally, the issue at hand also exemplifies the approach of Jewish Law to the relationship between law and morality…a distinctive characteristic of Jewish Law is that on the one hand there is a clear distinction between legal norms, which give rise to legal obligations, and moral norms, which do not create legal obligations. On the other hand, however, both in terms of determining the legal principles and the judge's concrete ruling, discussion and reference are made to the existence or nonexistence of the moral obligation as well as to the existence or non-existence of a legal obligation. In another context, we related inter alia to the reasons for this phenomenon in Jewish Law (see Bibliography, Elon, 1988, 126–28).
… Just as the Written Law (i.e., the Torah) commands the individual and the public to fulfill the commandments that are clearly legal in character, similarly and just as categorically does the law command the performance of moral and ethical precepts … This basic phenomenon, of course, does not eliminate the distinction between law and morals … [T]hus the halakhah carefully distinguishes between normative rules that involve court enforced sanctions and precepts not enforced by such sanctions. However, the fact that legal norms and moral imperatives have a common source in the halakhic system has an important consequence: The legal system, as a legal system, from time to time invokes the moral imperative, even though it does not enforce it. The court does not refuse to decide a case, even when the decision cannot be enforced. The author of legal responsa or halakhic decisions, as well as the court all include the relevant moral imperatives, as an integral part of their discussion: "it is apparent from the Talmud that is incumbent on a judge to declare what is proper conduct even when such conduct is not required by strict law, making it clear that nonetheless good and upright people will act in that manner. The litigant [to whom the declaration is addressed] may then conform [to the guidance so given] but if he does not, no sanction is taken against him [by the court]" (Arukh Hashulkhan, Ḥm 304.11) (ibid., 291–92 of the decision).
Later in the judgment, the Court cites the dispute between halakhic authorities whether despite the fact that the seller himself would not be called evil for selling the assets, the person who persuaded the heir to sell his inheritance, is considered "wicked" because of his "meddling in strife not his own (sowing ferment in someone else's dispute)" (Prov. 26:17). Alternatively, perhaps the seller is also a rogue. The Rashbam (bb 137a) ruled that the expression "wicked" is not applicable to the seller, yet the Meiri (Bet ha-Beḥirah,bb 137a) ruled otherwise. Both agree however that a priori it is forbidden to give such counsel; but that having done so and despite its being morally tainted, the deal is valid. In its concluding comments the Court states:
This is a highly informative example of a dispute and detailed discussion between halakhic authorities over the existence or non-existence of a moral defect in conduct related to the performance of a legal transaction, despite their agreement on the validity of the transaction itself (ibid., 293).
The moral sanction of being considered "wicked" in halakhic literature is also applied to various acts of commercial competition. According to the Talmudic rule, when a poor man is sifting through left-over bread and another needy person comes and takes it for himself, the latter is called "wicked" (Kid. 59a). The Talmud cites this principle in the context of "competition" between two potential buyers vying for the same item. When a person is about to purchase an item from a seller, and another person precedes him and buys the item (herein-after, "an interloper"), the latter is [also] called "wicked." In the post-talmudic period, the legal significance of considering the interloper as "wicked" was expanded from being exclusively moral to bearing practical ramifications. Admittedly, if the transaction between the seller and the interloper has been completed, the would-be purchaser cannot reclaim the item from the interloper (Ritba, Kid. 59a; Resp. Maharik, 132). However, before the transaction has been completed, the interloper could be prevented from purchasing the said item (Resp. Maharshadam, Ḥm 259). Furthermore, according to Rabbenu Tam (cited in Ritba), even when the transaction has been completed, the item can be confiscated from the interloper. The moral sanction of being considered "wicked" received another practical application during the period of the aḥaronim, when it was decided to publicly, in the synagogue, renounce the interloper as "wicked" (Haggahot Maimuniyyot, Hil. Ḥovel 5:1; Perisha, Ḥm 237).
the imprecation: "he who punished" (mi she-para)
Another expression of moral sanction appearing in tannaitic literature is directed at the person who withdraws from a transaction, prior to its legal consummation, but after the consideration had already been given: "if he has already paid, but has not taken possession of his produce, he can withdraw [the offer], but they [the Sages] said: He who punished the generation of the flood and the generation of the dispersion, He will take vengeance of him who does not stand by his word" (bm 4:2). The amoraim added that this is a moral sanction with a certain measure of practical significance (bm 48b); namely – that the bet din would inform the litigant that he was liable under divine law. Their dispute related to the particular method of informing the litigant of this liability.
other sanctions no longer operative in contemporary times
An additional phenomenon in the category of legally reprehensible acts with only a moral sanction has its origins in the codification of Jewish Law and in the works of the halakhic decisors. One of the principles adopted by the authors of the post-Maimonides halakhic codes, Sefer ha-Turim of R. Jacob b. Asher, and Shulḥan Arukh of R. Joseph Caro, was the omission of halakhic rules that are no longer operative. For example, these works do not cite the biblical law of the accidental murderer who is exiled to a city of refuge (see *City of Refuge). Even so, these codes, to apprise us of the doctor's responsibility, cite the law pertaining to a doctor who is inadvertently responsible for a person's death, informed of his mistake, and sent to a city of refuge (Tur, yd 336; Sh. Ar., yd 336:1). The ruling has no practical implication and does not give rise to any halakhic-legal sanction; its purpose is to underscore the doctor's moral obligation, and to subject him to moral sanctions in cases in which he has made mistakes. Notably, this point was made by the Supreme Court in the Shefer case (ca 506/88 Shefer v. State of Israel, 48 (1) 87, 113, per Justice Elon) and the discussion of the principles that should guide doctors in their work.
Turning a Moral Sanction into a Practical Sanction – The Role of the Bet Din
Jewish law recognizes cases in which the bet din does not impose a practical sanction on the litigant, but rather, informs the party of his moral or religious duty. A striking example is in cases of divorce (see *Divorce). Although the bet din frequently rules that giving the get to the wife constitutes the fulfillment of a positive precept (mitzvah), it refrains from compelling the husband to do so. Hence, Rabbeinu Jonah (Spain, 13th century) ruled that "[even though] we do not coerce the husband by way of whipping him, as a means of compelling him to give his wife a get, when she says "I find him repulsive," the bet din informs and advises him that it is a mitzvah for him to divorce her (Shitah Mekubeẓẓet, Ket. 54a). At a later period, R. Bezalel Ashkenazi (Egypt, 16th century) stated in the name of his rabbi, the Radbaz, that once the bet din has informed the man of the mitzvah to divorce his wife, if he fails to divorce her he is regarded a "criminal" (Shitah Mekubeẓẓet, ibid.).
These comments were cited by the Israeli Supreme Court in hc 644/79 Guttman v. The Rabbinical Court, 34 (1) pd 443, per Justice Menachem Elon. In that case the Rabbinical Court ruled that "it was desirable" for the husband to give his wife a get, but did not compel him to give the get. The appellant's claim was that since the Rabbinical Court had the power to adjudicate matters concerning the spousal property only after having given a ruling ordering their divorce, in this case, in which the Rabbinical Court had only ruled that "it was desirable" for the husband to give a get, it did not (yet) have jurisdiction over property matters. The Supreme Court rejected this claim, clarifying that in Jewish Law, the system by which the rabbinical court adjudicates, a decision consisting of a "moral" declaration is a decision for all intents and purposes, and the Rabbinical Court's notifying the litigant of his moral obligation is a sanction in the full sense of the term; thus, "this distinction between the legal force and religious or moral force, in the context of a divorce judgment of the rabbinical court, is unacceptable. The criterion for determining what is and what is not included in 'a decision of divorce' must comply with the criterion of the judicial system to which the legislator conferred jurisdiction in the matter of the divorce, in this case, Jewish Law. The underlying principle in Jewish Law governing the distinction between law and morality or religion differs from the parallel distinction accepted in other legal systems…. This kind of ruling in which the rabbinical court rules that it is a mitzvah for the parties to divorce is almost a daily occurrence in rabbinical courts, and has long been accepted in Jewish Law …" (p. 447, of the decision).
Similarly, from the aforementioned comments regarding the imposition of moral sanctions for acts of which the law takes a negative view, it appears that the Sages upgraded the force of the "moral sanction." While the original intention was that the force of such a moral sanction extended no further than the book itself, obligating the person exclusively in terms of his conscience and God, the sages of recent generations tended to confer practical significance to these sanctions. This explains the case of "the poor man sifting through left-over bread," and the legal prohibition to attempt to precede him, and when someone (referred to as an "interloper") precedes him and takes the item, a declaration made in synagogue condemns him as "wicked." The same rule applies to a worker who accidentally damages his employer's property. According to the Arukh ha-Shulhan, the bet din should notify his employer of his duty to "follow the way of the good," waive the worker's payment of the damage, and continuing payment of his wage. The same applies to the rule of "fulfillment of duty in the sight of Heaven," regarding which it was ruled that the bet din should notify the litigant of his obligation to fulfill his duty in the sight of Heaven even though the bet din is unable to force him to pay (R. Solomon Luria, Poland, bb 6:6) and according to another view he is even disqualified as a witness until he has paid, because in effect he is in possession of stolen money (Meiri, bm 56a). This is also the rule regarding the principle of li-fenim mi-shurat ha-din (acting more generously than legally required), which in particular circumstances in later generations the bet din decided not to enforce. Some of these rulings will be elaborated upon below.
Enforcing the Principle of li-fenim mi-shurat ha-din (acting more generously than legally required)
According to many halakhic authorities, in certain cases, the bet din should enforce the litigant's compliance with the principle of li-fenim mishurat ha-din: "It is the practice of every Jewish court to compel the wealthy to perform their obligation where it is right and proper, even if the strict law does not so require" (Bayit Ḥadash on Tur, Sh. Ar., Ḥm 12:4; see Menachem Elon, Jewish Law, 1:155ff.). This principle is similar to another principle in the Jewish Law – kofin al ha-ẓedakah (the giving of charity may be enforced) (Ket. 49b), which only applies in particular circumstances. This rule constitutes the basis for the duty in certain circumstances to support children and relatives, even when this duty did not exist under strict interpretation of the law (see *Maintenance).
This matter was discussed in the Israeli Supreme Court in the Kitan case (ca 350/77 Kitan v.Weiss, 33 (2) 785). In this case, the Court rejected a defendant's claim for damages, since there was no proof of causality between the defendant's negligence and the damage. However, in his decision Justice Elon stated that it was appropriate for the defendant to compensate the injured parties, in accordance with the principle of li-fenim mi-shurat ha-din: "for it is a Jewish tradition and a fundamental principle in Jewish law that along with strict liability, there is the additional obligation to act li-fenim mishurat ha-din. It is particularly significant that this Jewish law obligation has found, as in the case before us, a primary application in torts" (p. 809 of decision). Justice Elon adds that under Jewish Law, it is appropriate for the court, in certain cases, to express its hope that one of the litigants will act more generously than legally required and compensate his opponent – although this hope is left to the discretion and initiative of the party (p. 811 of decision).
It should be stressed that the two other justices on the panel – Justice Shamgar and Justice Witkon – disagreed with this approach "that seeks to elevate payment of compensation li-fenim mi-shurat ha-din to the status of a settled general principal of tort law," owing to "the absence of clear standards"; they voiced concern for the "filing of frivolous appeals," since payment of damages li-fenim mi-shurat ha-din depends on the defendant's discretion and "I would not recommend blurring the boundaries between liability and non-liability" (ibid., pp.805, 807 – for more details, see *Damages).
Similarly, in the Ness v. Golda case (ca 842/79 Ness and Others v. Golda and Otherspd 36(1) 204) Justice Menachem Elon adopted the same approach. Justice Elon concurred with the other justices on the panel that the litigant could not be obligated to pay, but added that morally and in terms of justice, it was impossible to ignore that the defendant's conduct caused the plaintiffs the damage being claimed. Accordingly, he ruled that it would be appropriate for the defendants to provide compensation to the plaintiffs: "Under the strict law, they are not bound by any such obligation. Rather, it is a request of them to act li-fenim mi-shurat ha-din, and by doing so, they 'walk in the way of good men, and follow the paths of the righteous'" (p. 221 of judgment).
Enforcing compliance with the principle of li-fenim mishurat ha-din is particularly important in cases concerning the entire community, for "even though the obligation is not prescribed by the strict law, but only in accordance with lifenim mi-shurat ha-din, the public can be compelled in this regard, for the public, like the individual, and perhaps even more so, should do what is good and right and not stand on strict law" (File 5637/26, pdr 5:132, at p. 151; see Resp. Mayim Ḥayyim, Ḥm 6, quoted in Pithei Teshuvah to Sh. Ar., Ḥm 333; Resp. Ḥatam Sofer, Ḥm 239:9). The special status of the public was mentioned by the Supreme Court in the Boyer case (Boyer v. Shikkun Ovdim, 38 (2) pd 561, per Justice Elon). In this case too, after ruling that the appellant was not entitled to the remedy requested from the defendants, the Court expressed its request and hope that the respondents, a public body, would compensate the plaintiff in a suitable manner. However, the defendant did not see fit to comply with the Court's request, and to express its disapproval of the respondent's behavior, the Court decided to exempt the appellant from payment of the respondent's costs for the appeal.
In the State of Israel
The aforementioned decisions dealing with these questions were all given prior to the enactment of the Basic Laws of the State of Israel. As such, the judicial request and hope that litigants would conduct themselves in accordance with li-fenim mi-shurat ha-din only had the force of a recommendation. This has changed as a result of the enactment of the Basic Laws in 1992 (Basic Law: Human Dignity and Freedom, and Basic Law: Freedom of Occupation) which declared their aim to anchor in a Basic Law "the values of the State of Israel as a Jewish and democratic state," and in which the State's definition as "Jewish" precedes its definition as "democratic." By force of the Basic Law the Jewish Law attained a revered status in establishing the values of the State of Israel as a Jewish State. In view of this the Israeli common law dealing with lifenim mi-shurat ha-din should be reconsidered, with a view towards compelling litigants, in certain circumstances, to conduct themselves beyond the letter of the law, li-fenim mishurat ha-din. A major area in which Jewish and democratic values can, and ought to be, integrated, is at the intersection of law and morality. Clearly, the enactment of the Basic Laws should leave its imprint on this area and on the interpretation of related legislation.
A number of the laws of the State of Israel combine provisions which manifestly derive from the area of morality, such as the invalidity of a contract "the making, contents of object of which is or are …. immoral or contrary to public policy" (sec. 30 Contracts (General Part) Law, 5733 – 1973), or the duty to conduct pre-contract negotiations and to fulfill the contract itself in a customary manner and in good faith (sections 12, 39 of the aforementioned law; see *Contract).
In addition, there are also statutory provisions that obligate the judge, adjudicating a case, to take general moral considerations into account, such as Section 32 (a) of the Tenants Protection Law [Consolidated Version] 5732 – 1972, which concerns a case in which by law, an order should be given to evict a tenant from his house, and which states that "Notwithstanding the existence of a ground for eviction, the Court may refuse to give judgment for eviction if it is satisfied that in the circumstances of the case it would not be just to do so." In its decision in the Marcus case (ca 417/79 Marcus v. Hammer, 37 (2) pd) the Court (per Justice Menachem Elon) discussed the similarities between these provisions and conduct according to li-fenim mi-shurat ha-din in Jewish Law.
[Menachem Elon (2nd ed.)]
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