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Sunday, February 08, 2009

Yisro, Shemos 18:23: וְגַם כָּל-הָעָם הַזֶּה עַל מְקֹמוֹ יָבֹא בְשָׁלוֹם. Sometimes, It’s Better to Know Less

The Netziv says that Moshe was not dan b’pshara, he did not arbitrate disputes, because when litigants presented their case to him, he immediately knew what the halacha would be al pi ‘yikov hadin es ha’har’, (Let the law pierce the mountain). This type of scorched-earth psak, while Torah-true, does not necessarily contribute to shalom. (I don't know why the Netziv does not cite the Gemara about ‘he’emidu divreihem al din Torah (Bava Metziah 88), that one of the sins that brought the destruction of the Beis Hamikdash was that they insisted on following the letter of the law in civil disputes, which, I think, is essentially the same point as the Netziv.)

This is reminiscent of the vort of Rav Yosef Ber (Y.U.) who said, in his sefer about his father (I think ‘Ish Ha’halacha’) that the reason that Moshe was not as famous as Aharon for being a rodef shalom was because he stood for absolute and unwavering truth. Aharon, on the other hand, could be ‘meshaneh mi’pnei hashalom’. For example, Aharon would go to 'Reuven' and tell him that his enemy 'Shimon' wanted to end their fight, but that Shimon couldn’t bring himself to approach Reuven.  Then he would go to Shimon and tell him the same thing about Reuven wanting to end the fight, and they would reconcile. Moshe Rabbeinu couldn't do that. He would say that Reuven was wrong, or he would say that both of them were wrong, or he would say there was nothing to fight about and they were both fools. None of these objurgations, true as they were, would bring peace to anyone. Ha'emes ve'hasalom ehavu is no easier than vegar ze'ev im keves.

The most interesting thing about the Netziv is what he says in the note on the bottom, at least in the old print of the Haamek Davar. He says that the great wisdom of Yisro was suggesting that Moshe Rabbeinu get dayanim that were not such talmidei chachomim as he, because they would be able to be dahn bipshara.

The lesson the Netziv is teaching is that sometimes it pays to go to someone who knows less, because mediation can be a better approach than a black and while decision of who is right and who is wrong, who wins and who loses. When there’s an outright winner and loser, there’s going to be hard feelings– the winner will be upset that he had to go to court to get what he should have been given without the trouble of litigation, and the loser will forever resent the dayanim. In cases where the court orders a compromise, too, sometimes pshara satisfies both sides, and sometimes it satisfies neither. Usually, dayanim know they were successful when both sides are angry at them. But with the passage of time, often both sides feel vindicated.

A good illustration is found when we examine the concept of compromise in Halachic applications. Example: Rashi (horizontal) and Rambam (vertical) on Mezuzah and Bimah. Diagonal is good according to both, so it’s a good pshara. Same thing with the shittos about parshah stumah and pesuchah. But sometimes a pshara will not be right according to either side, as the Gemara often says about daas shlishis not being machria where it doesn’t contain elements of the two other shittos. But even the latter might be better for shalom, expecially in matters of shalom bayis.

The implicit lesson of the Netziv is that of the Gemara in Bava Metzia 88: even when you are one hundred percent right, it is wise to accept-even to seek- some degree of compromise. The price of insisting on the full exercise of your rights is often greater than the advantage you think you will gain. The ego boost of proving you are right and the other guy is wrong, and the immediate financial gain, should be subjected to a serious and honest cost/benefit analysis, and you might find that giving in a little will be the wiser path. The intangible benefits of a reputation of being a gentleman, of being reasonable, of winning but not grinding your opponents into the dirt, can be very valuable. And the benefit of Shalom is priceless, for you and for all of Klal Yisrael.