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Shabbat Parashat Shoftim 5771

Parashat Hashavuah: Pursuing Two Types of Justice

Harav Yosef Carmel

At Eretz Hemdah, we put a great deal of time, thought, energy, and resources into the idea and ideal of making adjudication in a beit din an attractive choice. Among this week’s parasha’s focuses is the matter of Jewish justice.

The Torah commands: “Pursue justice, justice” (Devarim 16:20). The gemara (Sanhedrin 32a) says that this refers to justice in din (strict law) and peshara (compromise). How is a dayan supposed to know when to do din and when to do peshara? Is peshara ever required? Is it always permitted?

The basic guideline is based on the following gemara. “Rabbi Yehoshua ben Korcha says: It is a mitzva to [offer a] compromise, as it says: ‘Truth and a judgment of peace you shall judge in your gateways’ (Zecharia 8:16). Isn’t it so that when there is judgment there is not peace, and when there is peace there is not judgment? Which judgment includes peace? This is compromise. What is the mitzva he refers to? The mitzva is to open by saying: ‘Do you want din or peshara?’” Indeed the Shulchan Aruch (Choshen Mishpat 12:2) says that the dayan should open with the question of which type of judgment they prefer.

It is interesting that before the beginning of a process that is supposed to reveal the truth, the dayan is supposed to propose a solution to obviate a proper conclusion. Why run away from justice? The explanation is as follows. When a dayan suggests a peshara before the process begins, he is not forcing anything on anyone. Both parties will have to agree to the peshara alternative; if either side refuses, the hearings will begin normally with no prejudice. Furthermore, in many cases, both sides have strong elements of truth in their claims, but it is difficult for this to find expression in din, where, in general, the one who has more truth or starts with possession wins all. The fact that each side accepts compromise also allows the sides to express that they realize that the other side is not without virtue, which is also an element of justice. The good feeling from the fact that the other side was willing to give up part of what he thinks he deserves certainly adds an element of peace, which Zecharia (see above) connects to justice.

On a practical basis, compromise is usually faster and cheaper. It also takes much less of a toll on one’s nerves, the concentration he needs to succeed in his other involvements, and even, sometimes, his health. One who “wins” does not always win but sometimes, in terms of values that matter, just loses less. It is a required chesed for the dayanim to offer these gains to the sides.

There are times when beit din will have no choice but to employ elements of peshara even within din and even without the permission of the sides, but that is the subject of another discussion. In the meantime, we bless ourselves that our batei din will have the wisdom to find many good solutions for the problems and needs of Am Yisrael in the realm of justice, In doing so, we would be hastening the time about which the navi says: “I will return your judges as of old and your advisors as originally. Then you will be called the city of justice, a faithful inhabitance” (Yeshaya 1:26).

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