Musar for Bava Metzia 60:17

And if it is his trait in dealing with people never to forego anything that is his and never to be merciful to them, he intensifies thereby, above, the attribute of din against the world and also against himself. For by the measure that a man measures with he is measured by, and none of his deeds will be overlooked. And this is the intent of Chazal (Bava Metzia 30b): "Jerusalem was destroyed only because they set their ways on the din of Torah." Now did they not have many sins, as indicated in Scripture? But according to the foregoing, it is clear. If they had overlooked offenses, the Holy One Blessed be He would have pardoned them accordingly. But they had set their ways not to forego anything for their friends beyond the parameter of din, wherefore the Holy One Blessed be He was exacting with them likewise.

And, in truth, how great is this mitzvah in the eyes of the Blessed L-rd, it being written (Michah 6:8): "He has told you, O man, what is good, and what the L-rd requires of you — but to do justice and to love chesed, etc." And Chazal have said (Succah 49b): "'to do justice' — this is din; 'and to love chesed' — this is gemiluth chasadim." And he also fulfills in this the mitzvah of (Devarim 29:9): "And you shall walk in His ways," as we find in Sifrei on the verse (Ibid. 10:12): "'to walk in all His ways' — these are the ways of the Holy One Blessed be He, as it is written (Shemoth 34:6): 'Hashem, Hashem, the G-d who is merciful and gracious, slow to anger, and abundant in chesed, etc.'" And Chazal say (Bava Metzia 30b): "R. Yosef taught (Shemoth 18:20): 'And you shall apprise them of the way' — this is gemiluth chasadim."

Examples of people to whom G–d applied the מדת הדין, attribute of Justice, are found in Baba Metzia 83, when Rabbi bar Chana was made to pay full wages to labourers who had accidentally ruined the merchandise he had asked them to transport. Similarly we find in Baba Metzia 30, that Rabbi Yishmael son of Rabbi Yossi, who was old and did not legally have to demean himself personally, nevertheless paid out money so as not to take advantage of the הלכה of והתעלמת, in Deut. 22,1, according to which he would have been able to preserve his dignity.

The Sifri quotes Rabbi Nehorai as saying that the people's request for a king was only a pretext to enable them to worship idols. The author based his theory on the words (Samuel I 8,20): "and we shall then become like all the nations." Rabbi Abravanel challenges this statement saying that if this were true how could G–d possibly have concurred in providing a king for the people when He said to Samuel: (Samuel I 8,22) "Accede to their request and crown a king for them?" Why did G–d not at least warn the people not to make the incidence of monarchy a pretext for idol-worship? I believe that such a warning is alluded to in Samuel I 8,7, where G–d told Samuel: "It is not you they have rejected; it is Me they have rejected as their king." Nachmanides, referring to Genesis 49,10, where Jacob assures Yehudah that the sceptre signifying royalty will not depart from his tribe, explains that the sin of the Jewish people at the time was that they rejected Samuel who was such an excellent judge. If that were so, why did Nachmanides single out Samuel? Did our sages not say that the authority of every judge in his period equalled that of Samuel? They even considered an ignoramus such as Yiftach as being Samuel's equal in authority (Rosh Hashanah 25b)! The clearest of all our early commentators is the Ran who appears to adopt the approach of Rabbi Eliezer when he distinguishes between two kinds of leadership. 1) Authority which is based on Biblical law. The Sanhedrin was appointed to ensure the proper administration of that law. 2) The second kind of authority, which usually expresses itself in rulings which contradict Biblical law, is called הוראת שעה, decrees promulgated in order to meet certain emergencies. Our sages have said that the reason Jerusalem was destroyed was because the judges insisted on applying Biblical law (Baba Metzia 30b) when they should have taken into consideration the circumstances prevailing at the time and have made allowances before convicting certain people. There is an allusion to this in 21,9: ואתה תבער דם הנקי, "You will remove from your midst guilt for the blood of the innocent." This verse could also be translated as "you are destroying the blood of the innocent," i.e. that on occasion innocent blood is spilled by inflicting punishment on the innocent due to prevailing pressures, such as in emergencies and in times of war. Appointment of a king enables the nation to be administered expeditiously during emergencies; the king has the right to ignore certain Biblical laws. This subject is meant in Psalms 122,5: "There the thrones (literally chairs) of judgment stood, thrones of the house of David." The "thrones of judgment" are the Sanhedrin, whereas the "thrones of the house of David" refers to the thrones of the dynasty of the house of David.

The Talmud illustrates this point by various examples. In Baba Kama 99b we are told that a woman came to Rabbi Chiyah asking him to determine if a certain coin was sound. He told her that it was. The next day the same woman came back to him complaining that others had refused to accept the coin at full value. Thereupon Rabbi Chiyah instructed Rav, the keeper of his money, to give this woman a coin of his own to compensate her for what he perceived to be an error of judgment on his part. He asked Rav to record this transaction as a loss. The Talmud questions why this instance was different from the previously mentioned example of a professional money-changer who erred in his judgment and who had given his opinion without charging. Such a money-changer does not have to compensate the enquirer. The Talmud answers that Rabbi Chiyah did not have to make restitution, but that he acted לפנים משורת הדין, beyond what was demanded of him legally. He took his cue from Rav Yossi who interpreted Exodus 18,20: "You will inform them of the path they should take and the practices they are to follow" to mean that one should go beyond the demands of the law in dealings with fellow human beings.

3) He must be aware that an honest decision makes him a partner of G–d in His creation of the universe, whereas a dishonest decision would cause G–d's Presence to depart from Israel, G–d's people. Any judge who illegally deprives a litigant of material things, giving them to the guilty party, will be punished by G–d in that נפשות, lives, will be cut short among members of his family. Should the judge, on the other hand, refuse to preside over litigation for fear of exposing himself to these dangers, the verse in Chronicles II 19,6 ועמכם בדבר משפט is to reassure such a judge that G–d will be with him (compare Shabbat 10, Sanhedrin 7). A judge is only held responsible for matters his eyes could see (Sanhedrin 6). He is not required to be omniscient. 4) There are occasions which call for the application of a judge's common sense, i.e. weighing probabilities. (Details of such occasions are spelled out in Tur Shulchan Aruch Choshen Mishpat section 15, based on Maimonides). This applies particularly when the judge is convinced that the claimant is a swindler, but is unable to prove it, or is unable to prove that the witnesses lied. The witnesses may even be telling the truth and the claim may still be false. In such a case the judge must disqualify himself, possibly even suggest that other judges should not entertain such a claim. He must not say to himself that any miscarriage of justice will be due to the witnesses' testimony and is not his responsibility. In such cases the name for the judge, אלוהים, is especially appropriate, since the Torah says כי המשפט לאלוהים הוא, that in the final analysis justice is G–d's business (Deut 1,17). The rule mentioned applies only when in the estimation of the judge it is the claimant who appears to be a swindler. When the defendant appears to be the rogue, the judge must on no account disqualify himself from sitting in judgment, but must make every endeavour to unmask the defendant who tries to swindle the claimant. Our sages have said in Baba Metzia 30 that Jerusalem was destroyed because [among other things Ed.] the judges "based themselves only on דברי תורה," i.e. the letter of the law instead of also considering the spirit of the law. The judges must take emergencies into consideration,such as the spiritual level of the generation during which the judge lives. I have explained this in detail on the relevant verse [see Parshat Shoftim, page 201 in the edition used by me. Ed.].