Somehow, this time of year – the lead-up to Yom Hadin – often makes me think not only about Heavenly judgment, but about humans who judge each other. Maybe it’s just the word “judgment”; maybe it’s coming off of the Three Weeks, when we talk so much about sinat chinam; maybe it’s the necessity of teshuva for interpersonal infractions, in which judgmentalism might play a role.
We might also consider possible parallels – similarities as well as differences – between human din and divine din.
“Din” doesn’t just mean “judgment,” as in “Yom Hadin”; it also means “law,” as in the phrase lifnim mishurat hadin – literally “inside the line of the law” but more often explained as “going beyond the letter of the law.” I recently came across this concept in the context of the ins and outs of hashavat aveida, returning lost objects. Halachic technicalities can sometimes lead to a ruling of “finders keepers” that doesn’t sit quite right with our moral instincts, and it occurred to me that it might be almost a relief to know that halachic tradition sometimes encourages returning an object despite those technicalities.
However, our moral instincts might be less relieved to find that while one sage on Bava Metzia 24b does call for a lifnim mishurat hadin approach, another sage in a parallel anecdote remains adamantly committed to the letter of the law.
In the first anecdote, Rav Yehuda is walking through a grain market with his rebbe, Shmuel, and asks him a hypothetical question: If one were to find a wallet in a public place such as this, would one be obligated to find the owner, or could one assume the owner has despaired of recovering it (yeush) and thereby relinquished ownership, so that the finder can keep it? Shmuel responds that the finder may keep the wallet; however, when pressed “What if a Jew then shows up to claim it with identifying information,” he says it would have to be returned. How can both rulings be true? Either halacha awards ownership to the finder or it doesn’t! Shmuel explains that his follow-up answer was actually lifnim mishurat hadin. After all, how could our moral sensibilities allow us to keep an item when the original owner is standing right there pleading that he or she still wants it?
Except… that’s exactly how Rav Nachman rules in the next anecdote.
This time, it is Rava who walks with his rebbe, Rav Nachman, in another public marketplace, and asks the question: If one finds a wallet here, what is the halacha? Like Shmuel, Rav Nachman says the finder may keep it. Rava then asks, “What if a Jew shows up to claim it with identifying information?” Here, the stories diverge, as Rav Nachman holds his ground: It belongs to the finder. Rava and his moral instincts object: But the owner is standing and screaming that it’s his! Rav Nachman, unlike Shmuel, displays no sympathy: that previous owner can scream all he wants, but he may as well be screaming over his collapsed house or sunken ship. No amount of screaming will put the milk back in the bottle, or rebuild a house or raise a ship, or restore to one’s possession an item halacha has declared is no longer his.
What’s the difference between these rulings? Is Rav Nachman just mean, while Shmuel is nice?
I’d like to share a couple of approaches to this pair of anecdotes, each of which has ramifications far beyond the laws of wallets lost in public marketplaces.
We first have to ask whether Shmuel is actually saying one must return the wallet if the owner shows up, that one should, or simply that one is encouraged to do so. It might seem odd to rule that one must go “beyond the letter of the law,” and indeed, Rambam essentially reconciles the two rulings by saying the item belongs to the finder free and clear, but that “one who wants to follow the good, upright path and do lifnim mishurat hadin” will return it if the original owner indeed shows up (Hilchot Gezeilah 11:7). On the other hand, the Raavyah (cited in Hagahot Maimoniot) suggests Shmuel was truly saying one must go beyond the letter of the law in such a case – but he also indicates that different people might actually have different halachic responsibilities: Shmuel refers to a case where the finder can return the object, while Rav Nachman teaches that halacha does not compel the finder to do so if he is poor and the original owner is rich.
In the Raavyah’s approach, then, there is a basic law – finders keepers, in a situation where yeush can be reasonably assumed – but that law only applies when necessary. Wherever possible, a person is actually required to go farther – as far as possible without incurring undue hardship.
This sounds like a really complicated legal system to apply, but we actually see this sort of thing all the time in halachic tradition. We often find a halachic work suggesting that X is permitted, but a yarei shamayim, or one who wants to do the really right thing – will do Y. And when you put it that way… well, it’s often complicated to apply. After all, don’t we all strive to be G-d-fearing? How can we settle for second-best X when we know there is Y out there, and that Y is what the G-d-fearing people do? How I can keep an object I found, even if it would make all the difference in the world to me and I’m technically permitted to take it, knowing that the best practice would be to return it?
Lifnim mishurat hadin is extremely appealing, to those who genuinely want to do the best they can. It’s tempting to do more, always more. Be a little extra careful to keep milk and meat separate; just throw away the meat that might have come in contact with a drop of milk! Add an inch to that skirt; no, another one. Better yet, put on two skirts, so no one can possibly see anything. In fact, ladies, better stay home, just to be sure.
It’s easy to see why people get swept up in adding chumra after chumra, going beyond the actual requirements of law. If some is good, more must be better, right?
Within the Raavyah’s reading, I would suggest that the natural temptation to exceed technical requirements is the reason Rav Nachman’s ruling is so important. Rav Nachman reminds us that more is not always better – because more of Y might mean less of Z, and Z is also important. Really, truly, halachically important. Halacha cares about Z, even if Z doesn’t look as pious as Y. Halacha cares about the finder’s means; halacha cares that we not throw out food that’s completely kosher; halacha cares about women’s dignity and opportunities to contribute to the world in a variety of ways.
Halacha weighs a lot of different considerations from a lot of different angles, and while Shmuel reminds us that there is sometimes value in going beyond the law in one direction – Rav Nachman reminds us that there is legitimacy in not, that the considerations from the other direction are valid and valuable as well.
Most important, perhaps, is the gray area the Gemara leaves open between these two rulings.
If Shmuel and Rav Nachman rule differently because the circumstances of their cases differ, there is also the matter of how to make that determination. Who decides whether to return the item or not in any given scenario, and how?
Rav Joshua Amaru, on the Etzion website, suggests another distinction between Shmuel and Rav Nachman: the question of what sort of ruling should be made, by whom. “Shmuel teaches his favorite student that what is allowed and what one ought to do morally are not the same… To benefit from someone’s loss in this way, thought not illegal, is not the way in which Shmuel expects Rav Yehuda to behave.” On the other hand, he suggests, “Perhaps Rav Nachman believes that it is not appropriate for him to answer his student’s question by telling him the lifnim mi-shurat ha-din. Rav Nachman is a professional judge… By putting moral pressure on the finder, one may be exhibiting kindness to the original owner but at the expense of the finder. It is one thing for the finder to give the money back on his own initiative and another for the judge to encourage him to do so.”
This reading, alongside the Gemara itself, and the Raavyah, and even the Rambam, speaks to the intricately-woven challenges of making decisions in a world that is not black and white.
It is easy to say going beyond the letter of the law is better – and sometimes it is, but sometimes it’s not, because there are multiple sides to every story and those sides are different for every person.
In some cases, the choice may be made under advisement from a trusted mentor to a close student; Shmuel might well be in a position to direct Rav Yehuda as to what he expects of him. But for any authority figure to lay down the law from on high that everybody must do Y, the most Y ever, despite solid basis for X or Z – that’s not fair, and it’s not authentic. Law is law, even if sometimes, for those who want and are able, going beyond the law is better. It’s a delicate balancing act and ultimately, no one can make those determinations for others.
No one can say anyone else does or doesn’t go far enough in any chumra. Halacha is halacha, and chumra is chumra – and different halachic opinions are often equally valid different halachic opinions, and no one gets to say everybody must always choose the most strict.
To return to the time of year and the upcoming Yom Hadin: The only One who can make these determinations, apart from each individual and perhaps a trusted mentor, is G-d. Not coincidentally, He’s also the only One who has no personal bias affecting His view of din. We trust His judgment, not that of our friends and neighbors, in determining what standards we must uphold, because He is not swayed like our friends and neighbors might be by their subjective ideals regarding lifnim mishurat hadin. He sees all the X’s and Y’s and Z’s, and knows what is right for each of us, and we can trust Him to judge each of us only in terms of the integrity of our individual attempts to weigh X, Y, and Z.
And at the same time, we beg of Him that he take the lifnim mishurat hadin path in judging us, having compassion even when we don’t deserve it (see, for instance, Berachot 7a) – because for Him, there is no other side; unlike us, He has nothing to lose.
Sarah C. Rudolph is a Jewish educator and freelance writer. She has been sharing her passion for Jewish texts of all kinds for over 15 years, with students of all ages. Sarah’s essays have been published in a variety of internet and print media, including Times of Israel, Kveller, Jewish Action, The Lehrhaus, TorahMusings, and more. Sarah lives in Cleveland with her husband and four children, but is privileged to learn online with students all over the world through www.TorahTutors.org and www.WebYeshiva.org.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.