The Talmud in general, and the daf yomi read around the world last week, in particular (Sanhedrin 6), is as relevant as ever – actually as to two burning issues of our times.
The daf includes discussions regarding compromise, which is at the heart of every negotiation, just about by definition, and our country was just transfixed on the negotiations on government funding and the debt limit; while Jews everywhere – and much of the whole world to an extent – are transfixed on the negotiations to release the hostages and the ceasefire in Gaza. Many people support negotiations in principle, and many people oppose negotiations in principle. There is something to support both sides in the page of the Talmud we just studied.
On one hand, uncompromising din, or judgment, symbolizes truth (emes) or clarity (birur), values we obviously value highly.
On the other hand, flexible pshara, botzea, or mediation, symbolizes peace, which we also value highly. And Tosfos notes another benefit of this approach – it only applies if there is unanimity.
On one hand, judges must assure that the true judgment will prevail, as it is stated “For the judgment is G-d’s” (Devarim 1:17).
On the flip side, Rabbi Eliezer, the son of Rabbi Yosi HaGlili, says it is prohibited to mediate a dispute, and anyone who mediates (botzea) a dispute is a sinner, and anyone who blesses the mediator is cursing [G-d], and as to this it is stated the [wicked or covetous person] (botzea) blesses himself, though he despises G-d (Psalms 10:3). (But see the reference to Rashi below.)
Botzea also means stealing, presumably because none of the disputants receives everything they believe they are entitled to.
On the other hand, Rabbi Yehoshua ben Korcha says it is a mitzvah to mediate a dispute, as it is stated “Execute the judgment of truth and peace in your gates” (Zechariah 8:16). It is not that in the place where there is [strict] judgment there is no peace, and in a place where there is peace, there is no [strict] judgment. Rather, ideally the judgment has peace within it, hence, “this is mediation” (as both sides are satisfied with the results).
We can now apply some of these principles to the negotiations that have been capturing our attention with climaxes already reached or at the verge of being reached. As to the U.S. budget, strict judgment would require that money should be spent by the government on necessities. The problem is that there is no agreement on what is necessary; hence, the need for compromise. As to the Gaza situation, strict judgment would require people to be able to live on their own land, without being targeted for annihilation, and not to be taken forcefully from their homes as hostages.
As for the current hostages, the Israelis certainly have been trying to restore them to their rightful homes, but since the Israel Defense Forces haven’t been able to achieve this yet militarily, they are falling back on negotiations in addition to the military.
The Talmud makes it clear that ideally, in some kind of utopia, justice should prevail, and the letter of the law should always be followed, but in the real world, sometimes this simply isn’t realistic, so that compromises have to be made.
But you can’t have it both ways. You can’t first submit to a judgment and if it doesn’t go the way you like, go to a compromise. Either you go for a judgment or you go for a compromise.
Once the verdict of the judgment has been decided by a judge, before it is even issued, says the Talmud, it is not permitted for the dispute to be mediated (6b). Double Jeopardy long preceded the 5th Amendment to the U.S. Constitution and the 1999 film in Hollywood by that name.
Talmudic law doesn’t have the flaw of American law which sometimes blurs the distinction since a losing litigant on the merits can appeal, and the winner may wish to avoid the time and expense of fighting it by accepting a compromise offer.
Shalom Rosner quoted Rabbi Jonathan Sacks, OBM, quoting Rabbi Joseph B. Soloveitchik, OBM, in Reflections of the Rav, as follows:
“Din [strict judgment] pits one party against the other. The dayan analyzes the relevant facts of the case, and applies the appropriate legal sanctions as prescribed in Choshen Mishpat. The law is administered with… impartiality, and its decisions are dictated by objective data. One party emerges the victor…. Discord and resentment persist. The legal issue has been resolved, but human bitterness continues to fester.
“In [instances of compromise or] pshara, however, social harmony is the primary concern of the dayan…. The goal is not to be juridically astute, but socially healing. The psychology of the contenders, their socioeconomic status and values as well as the general temper of society are…primary…. These considerations are evaluated within the broader halachic parameters of the Choshen Mishpat, and the final resolution of conflict is a delicate and sensitive blending of both objective legal norms and subjective humanistic goals. For this reason, pshara is the preferred alternative.”
It all sounds beautiful, but note that compromises in financial matters may not really be used as precedents for hostage situations, even without considering the precedent set by the Maharam m’Rutenberg (circa 1220-1293), who achieved immortality (in Jewish lore) by choosing to die in prison rather than to submit Jewish communities to blackmail to get their hostages back, on the grounds that hostages should not be redeemed for more than their “value” (Gittin 45a).
Not also that in each case referred to above (din and pshara), Rabbi Soloveitchik referred to the parameters of the Choshen Mishpat – the Jewish laws of financial disputes, damages, courts, and witnesses. But on the world stage – or behind the scenes in previously smoke-filled rooms – in hostage negotiations and in government funding negotiations, the laws of the Choshen Mishpat are not exactly universally accepted. Until they will be, not to mention the Seven Noahide laws, we will have to settle for the best that can be obtained by the negotiators, one way or another.
