Appendix I: Lifnim Mishurat Hadin

APPENDIX I: LIFNIM MISHURAT HADIN Jewish scholars, who argue for the existence of a Jewish ethic independent of Jewish law , often use the concept of lifnim mishurat hadin to support the assertion that supererogation in Jewish ethics stems from a sense of ethical autonomy. I will show that “supererogation” in this sense is an incorrect translation. 1 Through examining the relevant Talmudic passages which discuss the concept of lifnim mishurat hadin , I hope to show that the concept is more akin to voluntary obedience to the spirit of the law than to a notion of ethical autonomy. As in the case of a person who has attained Shlemut and is serving God with simcha , acting lifnim mishurat hadin is a demonstration that the person, in addition to acknowledging that the law is an exclusionary reason, also understands and is motivated by the values within the normative reasons that the law embodies. The person will therefore act in a way that is “more” than just legally required while acting according to the ethos that the law imparts. The acceptance of principles and concepts embedded within the law thus allows for the manifestation of the ethical within the legal. This understanding of lifnim mishurat hadin supports the view that the law can shape a person’s beliefs, since, even when he or she acts “supererogatorily,” it is the law that pro- vides the beliefs which motivate such action. This view is in line with Rabbi Lichtenstein’s understanding of lifnim mishurat hadin , which for him is an aspect of Halakha and not a morality of aspiration that is superimposed upon the law. 2 For Rabbi Lichtenstein, because the Halakha demands that © The Author(s) 2017 293 I. Bedzow, Maimonides for Moderns, DOI 10.1007/978-3-319-44573-1 294 APPENDIX I: LIFNIM MISHURAT HADIN people attempt to transcend their minimum obligations, supererogation is, at times, obligated by the Halakha itself. Yet the obligation of supererogation has a higher bar for justifi cation, in that there must be clear legal support for it and not solely a vague moral demand. Moreover, as shown through the Talmudic cases below, the one who acts lifnim mishurat hadin oftentimes takes a position that shows concern for the individual with whom the person is concerned over the societal norms by which the two regularly interact. As such, lifnim mishurat hadin is more closely aligned with acting through righteousness ( tzedaka ) than strictly through justice ( mishpat ). TALMUDIC SOURCES Lifnim mishurat hadin is used only in a few places in the Talmud , yet it is mentioned both in legal contexts and in theological contexts. I will pri- marily focus on the legal cases, though we will touch upon the theological ones as well. Case I There was a certain woman who showed a denar to Rabbi Hiyya and he told her that it was good. Later she again came to him and said to him, “I afterwards showed it [to others] and they said to me that it was bad, and in fact I could not use it.” He therefore said to Rav [Abba Arikka], “Go forth and change it for a good one and write down in my register that this was a bad business.” But why [should he be different from] Danko and Issur 3 who would be exempt because they needed no instruction? 4 Surely, Rabbi Hiyya also needed no instruction?—Rabbi Hiyya acted lifnim mishurat hadin . 5 When one examines this passage within the greater Talmudic discussion in which it is placed, it seems more accurate to understand Rabbi Hiyya’s actions as being grounded in his embodying the spirit of the law , rather than in autonomous ethical reasoning or simply in legal obedience. 6 Immediately preceding the account with Rabbi Hiyya, the Talmud gives two contradictory braitot 7 regarding the situation where a denar was shown to a money changer and he declared it to be good, but it was subsequently found to be a “bad,” that is, no longer valid, coin. APPENDIX I: LIFNIM MISHURAT HADIN 295 It was stated: If a denar was shown to a money changer [and he recom- mended it as good] but it was subsequently found to be bad, in one braita it was taught that if he was an expert he would be exempt but if [he was] an amateur he would be liable, whereas in another braita it was taught that whether he was an expert or an amateur he would be liable. To resolve the contradictory braitot , Rabbi Papa states that the fi rst braita refers to a case of an expert such as Danko and Issur, who made a mistake regarding a new stamp at the time when the coin had just [for the fi rst time] come from the mint. Therefore, his error is not due to his expertise (or lack thereof) but rather to a situation beyond his control. In all other cases, however, both the expert and the amateur would be liable. Preceding this discussion is a discussion directly related to it 8 regarding the disagreement between Rabbi Meir and the Sages over whether an expert slaughterer who made a mistake and rendered an animal unfi t was obligated to pay the animal’s owner for damages. Shmuel, in the name of Rabbi Meir, argues that he would be liable to pay, whether he was com- missioned to slaughter the animal for a fee or if he did it gratis. The Sages, on the other hand, rule that an expert would be exempt if he slaughtered the animal for free and liable if he slaughtered it for hire. For the Sages, the difference between acting gratis and for hire is that in the former case one does not assume responsibility for damages whereas if done for hire then one does. The responsibility for error comes from his responsibility for the animal and not from the reliability of one’s slaughtering. An amateur, on the other hand, would be liable in all cases, since his profi ciency would not allow one to consider an error to be outside of the slaughterer’s control. He is therefore considered to be negligent in all cases of error. This disagreement between Rabbi Meir and the Sages, however, is only a particular instance of a more fundamental disagreement between them. Rabbi Meir holds that one is liable for any damage, whether it is a conse- quence of direct action or due to negligence, while the Sages hold that, in the case of negligence, no action can be instituted in the civil courts to redress the wrong, though the person would be liable according to Divine justice . What this means, according to the Sages, is that the law admits that there is liability in a case of negligence, yet it recognizes that restitu- tion cannot be imposed by the court system. The relationship between the two discussions is that, though the expert is not directly responsible, there is nonetheless also an element of negligence in his behavior. 296 APPENDIX I: LIFNIM MISHURAT HADIN The direct relationship between the story of Rabbi Hiyya and the disagreement between Rabbi Meir and the Sages regarding the obligation to compensate for loss is supported by the exchange between Rabbi Shimon ben Lakish and Rabbi Elazar, which is recorded immediately after the story about Rabbi Hiyya. Rabbi Shimon ben Lakish showed a denar to Rabbi Elazar, who told him that it was good. Rabbi Shimon ben Lakish then said to him, “You see that I rely upon you,” to which Rabbi Elazar replied, “Suppose you do rely on me, what of it? Do you think that if it is found bad I would have to exchange it for a good one? Did not you yourself state that it was only Rabbi Meir who adjudicates liability in an action for damage done indirectly (as would be the case in negligence), which apparently means that it was only Rabbi Meir who maintained thus whereas we do not hold in accordance with his view?” Rabbi Shimon ben Lakish, however, replies, “No; Rabbi Meir maintained so and we hold with him.” This means that, according to Rabbi Shimon ben Lakish, even an expert money changer would be liable for damages according to the law . In light of the greater Talmudic discussion, Rabbi Hiyya’s actions, as being lifnim mishurat hadin , can be understood in two ways. Either Rabbi Hiyya acted according to what he saw was the law , which he held was in accordance with the position of Rabbi Meir, and thus the term lifnim mishurat hadin means that he acted according to a more stringent minor- ity legal opinion (i.e. within the line of that which is legally permissible) even though the law usually accords with the majority. Alternatively, Rabbi Hiyya acted according to the opinion of the Sages, yet in order to remove himself from the potential of Divine judgment due to his negligence, he acted lifnim mishurat hadin and paid the damages, even though he was not obligated to do so by a civil court. In other words, he understood the normative values embedded within the law, and he was motivated in acting according to them even though it demanded that he do more than what was legally required. Case II Rabbi Ishmael beRebbi Yossi was walking on a road when he met a man carrying a load of sticks. The latter put them down, rested, and then said to him, “Help me to pick them up.” “What are they worth?” [Rabbi Ishmael] inquired. “Half a zuz,” was the answer.

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