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The Problem of Equity in Maimonides*

  • Izhak Englard

Extract

Concern with the question of equity – in the Aristotelian sense of epieikeia – in the teaching of Maimonides has been revived by the profound study of this basic and complex subject by the late Eliezer Shimshon Rosenthal. The immediate purpose of that study, amplified in the intricate manner characteristic of the author, is to show that Maimonides' answer regarding the Halakhah on the last hour for eating hamez on the eve of Pessah is intimately associated with his perception of the generality of the Torah as expressed in Part III, chapter 34 of The Guide of the Perplexed, and comparable to another well-known responsum of his concerning the prohibition of listening to musical song.

In the course of his discussion, the author points out the connection between Maimonides' approach and the writings of Aristotle, and in a special appendix he enlarges on the relationship of Aristotle to Plato. Rosenthal's understanding of Maimonides' position gave rise to a critical response by Shalom Rosenberg, which in turn led other scholars to contribute to the debate with their own clarifications and comments.

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**

Bora Laskin Professor of Law, Faculty of Law, The Hebrew University of Jerusalem

*

Publication of this paper in this issue of the Israel Law Review honouring Prof. G. Tedeschi was made possible by the support of the Israel B. Greene and Sara Mann Greene Fund for Equity Studies.

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1 Rosenthal, E.S., “For the Most Part” (“Al Derekh haRov”) (1968) 1 P'raqim 183224 ; Id. “Gleanings of P'raqim I” (1969-74) 2 P'raqim 381-383.

2 Resp. Maimonides, Blau, , ed. (2nd ed., 1986) no. 252, p. 460 .

3 Ibid., no. 224, p. 398.

4 Rosenthal, supra n. 1, at 205-224.

5 Rosenberg, S., “And again about ‘For the Most Part’” in Spiritual Leadership in Israel, Belfer, E., ed. (Tel Aviv, 1982, in Hebrew) 103–187, 300303 .

6 See infra nn. 33 and 36.

7 Rosenthal, supra n. 1, at 189.

8 Nicomachean Ethics V, 10, 1137b . This and all the following quoted passages of Aristotle are from The Basic Works of Aristotle, McKeon, R., ed. (New York, 1941).

9 Ibid.

10 Politics III, 11, 1282b, 3–6.

11 Rhetoric I, 13, 1374a, 25, 1374b, 2.

12 Ibid., 1374b, 10-16.

13 Nicomachean Ethics V, 10, 1138a .

14 Rhetoric I, 13, 1374b, 16–22. See to the same effect Magna Moralia II, 1198b1199a . The attribution of this work to Aristotle is disputed. Cf. Rosenthal, supra, n. 1 at 190. See generally D'Agostino, , Epieikeia – II tema dell' equità nell' antichità greca (Milan, 1973) 8485 .

15 D'Agostino, Ibid., at 81-83, 96-100.

16 Hamburger, M., Morals and Law – The Growth of Aristotle's Legal Theory (New Haven, 1961) 93105 .

17 In view of the centrality of this chapter, it is quoted in full from Pines', S. translation of The Guide of the Perplexed (Chicago, 1963). All subsequent quotations of The Guide are from this translation.

18 Compare Daud, R. Abraham ibn (1110-1180), Emmuna Rama, Weill, , ed. (Berlin, 1919) 95 : “For man who is weak in intellectual speculation, human benefit is [judged] according to each individual, but with God it is according to the generality. Thus, for voyagers the purity and cleanness of air and the light of the sun are beneficial, but if the wish of each of them is fulfilled, ploughing and livelihood will cease. Hence, the High Priest's prayer: ‘Do not listen to the prayer of voyagers’ [TB Yoma 53b]”.

19 Resp. Maimonides no. 224. Rosenthal, supra n. 1, at 186-188.

20 Resp. Maimonides no. 252. The reason given by the Talmud for the advancement of the prohibition to the fifth hour is the possibility of a two-hour mistake by people about time.

21 See infra, text at n. 81 ff.

22 Rosenthal, supra n. 1, at 199-200.

23 In his notes on this phrase, Rosenthal (ibid., at n. 65a) refers to Shimon, R. in Mekhilta deRabbi Yishmael, Yitro 10 (Horowitz, , ed.) 240 ; Sifri, Devarim 32 (Finkelstein, , ed.) 57 ; TB Berakhot 5a: “R. Shimon b. Yohai says: 'The Holy One, blessed be He, gave Israel three precious gifts and all of them were given only through sufferings. These are the Torah, the Land of Israel and the world to come. Whence do we know this of the Torah? Because it is said: ‘Happy is the man whom Thou chasteneth, O Lord, and teachest him out of The Law [Psalms 94:12]’”.

24 Rosenthal, supra n. 1, at 223-224.

25 Ibid.

26 Rosenberg, supra n. 5, at 87-103.

27 Akedat Yizhak, Pollack, , ed. (Pressburg, 1849) Shemot, chap. 43, at 8687 ; chap. 46, at 123. See Rosenberg, supra n. 5, at 92-94 and in particular at 301 (n. 22) citing Arama to the same effect from his Commentary on Esther (Constantinople, 1518) 4b .

28 Akedat Yizhak, ibid., chap. 43, at 87. The idea of Arama is that correction of the law in the sense of equity lay within the authority of the Bet Din “to decide according to law or in the light of emergency conditions against law” (Akedal Yizhak, chap. 43, at 86-87 and cf. TB Yevamot 90b). This idea is found earlier with R. Moshe Narboni (14th century, see infra n. 31), and with Yosef ben Shem Tov ibn Shem Tov (1400-60) as emerges from a manuscript commentary cited by Rosenberg, supra n. 5 at 102-103. Another similarity between the latter and Arama is that both cite here the rabbinical dictum (Sifre, Shofetim): “Even if they tell you that right is left and left right… hearken to them”. It may incidentally be noted that Arama influenced, to all appearances, his younger contemporary Don Yizhak Avrabanel (1437-1504) in the latter's commentary on Deuteronomy 17:11, and eventually, Rabbi Yosha Falk Cohen (1555-1614) in his Glosses on Tur, Hoshen Mishpat 1:2, Drisha. See also Kirschenbaum, A., “Maimonides and Equity”, in Maimonides as Codifier of Jewish Law, Rakover, N., ed. (at press).

29 Akedat Yizhak, loc. cit.

30 Rosenberg, supra n. 5, at 98.

31 Ibid. It should, however, be observed, for greater accuracy, that Arama, who regards the authority of the Great Bet Din as a means of correcting the law, does not contend that this is the view of Maimonides. As cited in the text, Arama has reservations about Maimonides' remarks in The Guide, Part III, chapter 34: “Ponder over his view, for what we have written is necessarily right in view of the perfection of the divine Law”. Rosenberg, at p. 90, points out that Moshe Narboni in his commentary on The Guide represents the medieval Jewish Aristotelian position in adopting the idea of correction by the Great Bet Din. Narboni writes: “Power was given to the Great Bet Din to amend many things as justice requires, as he [Maimonides] will explain, according to the change of time and place and circumstances, since the intention of the Torah which should properly be observed and studied is to live and not die thereby, since ‘it is a tree of life to them that grasp it’ and it was well said that ‘these are the commandments which man shall do and live by them, and not die’”. (See Goldenthal, ed., Vienna, 1852, 62b). Cf. Shem Tov (ben Yosef) Ibn Shem Tov's commentary on chapter 34 of The Guide, where very much the same thing is said. It is known that Shem Tov Ibn Shem Tov relied much on Narboni, often without mentioning the source: see Moshe Narboni (ed. Hayoun, M.R.) in Texts and Studies in Medieval and Early Modern Judaism, vol. 1 (Tubingen, 1986) 9198 . Whereas these commentators tried to reconcile Maimonides with Aristotle, Yizhak haLevi Satanov, a controversial man of the Jewish Enlightenment (1732-1804) in his commentary on The Guide, Part III, chapter 34 (Berlin, 1795) 43b , stressed the difference between them: “This is the opposite of what Aristotle wrote in his Ethics, that human legislators should be concerned with laying down good laws and equitable rules in accordance with the nature of the society and the times. It is otherwise with divine Law which is eternal for all time and in every place just as nature, for the words of the Lord are like a flame that burns always and everywhere. This is the difference between divine law which is universal and human law which is particular”. But, Satanov adds an interesting comment: “What [Maimonides] has said is very right and true as regards the commandments which are personal obligations but not as regards those which are linked to the Land of Israel and to the Temple, and which are in force only there and during the Temple's existence. Moreover the other commandments are mainly intended to be observed there, as the sages said in Sifre on the verse ‘And ye perish quickly from off the earth’, although I exile you from the land [of Israel] you will be distinguished by the commandments and when you return they will not be new for you”. Cf. ibidem at 51a.

32 Rosenberg, supra n. 5, at 97, relying on the remarks of Rabbi Yosef Caspi, Terumat haKesef (in manuscript, quoted ibid., at 101-102). It would appear that Caspi (1279-1340) was the first to regard the emergency regulations of the prophet as a matter of equity in the Aristotelian sense of correcting the generality of the law: “This is the secret given by our Torah, according to our Rabbis, to the prophets who are perfect representatives of the human race, as Joshua did in saving Rahav and her household, as Elijah did in sacrificing [on Mount Carmel] and Elishah in cutting down the fruitbearing tree. And R. Moses has already explained this in his Treatise, and in particular in the Introduction to the Commentary on the Mishnah, and that is sufficient”. Another important source is Gersonides (1288-1344), who in his commentary on the story of the woman of Tekoa (Samuel II, 14:11) suggests that the King had a similar power to amend the law. Cf. for the sources of Maimonides, n. 58 infra.

33 Shein, Ch., “‘The Majority Rules’ – Illusionary Argument?” (1984) 13 Da'at 5559 .

34 See text at nn. 56 and 57. infra.

35 Shein, supra n. 33, at 59.

36 Levinger, J., “ Halakha and Personal Perfection” (1984) 13 Da'at 6265 .

37 Ibid., at 4. Levinger relies on Maimonides, , Hilkhot Sanhedrin 24:6 : “A judge may declare property to be ownerless and dispose of it as he deems fit in order to stem breaches of the law and enhance its upkeep or to penalise the violent person”. Levinger understands the words emphasized as referring to “the special situation of a man who is being tried”. To my mind the punishment of the person has as its purpose the public good, as follows from the context in which it appears; see Hilkhot Sanhedrin 24:10 .

38 Levinger, supra n. 36, at 64.

39 Ibid., at 65.

40 Resp. Maimonides no. 224, text at n. 19 supra.

41 TB Berakhot 63a: “‘In all thy ways acknowledge Him’ [Proverbs 3:6] … even for a matter of transgression”.

42 The Eight Chapters (Jerusalem, 1962) 390b .

43 See Twersky's, I. oeuvre, and especially his Introduction to the Code of Maimonides (Mishneh Torah) (New Haven and London, 1980); compare now also Pines, S., “The Philosophical Purport of Maimonides' Halachic Works and the Purport of the Guide of the Perplexed”, in Maimonides and Philosophy, Pines, & Yovel, , eds. (Nijhoff, 1986) 1, 2 : “In anticipation of one of our conclusions we may remark that our investigation will show that the somewhat facile assumption which has been rather frequently made that Maimonides' halachic works are less ‘philosophical’ or ‘Aristotelian’ than The Guide is by no means true, indeed a close examination of some of the texts in question suggests that the diametrically opposite conclusion may come nearer to the truth of the matter”. See also R. Brague, “Leo Strauss et Maimonide”, in Maimonides and Philosophy, ibid., at 246, 255.

44 See text at n. 17 supra. Incidentally, we may note that the problem of the law's generality does not seem to have been treated much in Jewish thought before Maimonides. One source we have found is Abraham ibn Ezra (1089-1164) in his commentary on Psalms 94:15 (“For judgment shall return unto righteousness”): “To righteousness shall return the law of God in generality, but in particulars it happens that there is no justice. Behold an example: when rain falls on the earth, justice and grace [is done] to the generality of the world, which needs water; only to the few who are the particulars is justice not done, because the rain will usually cause them damage”.

45 See E. Goldman, “Principles of Political and Legal Philosophy as Reflected in the Guide for the Perplexed”, in Maimonides as Codifier of Jewish Law, supra n. 28.

46 Cf. Maimonides on the human legislator: “The whole purpose of that Law being, on the contrary, the arrangement, in whatever way this may be brought about, of the circumstances of people in their relations with one another and provision for their obtaining, in accordance with the opinion of that chief [of the polity], a certain something deemed to be happiness” (The Guide, Part II, chapter 40). Compare the opinion of R. Abraham ibn Daud, supra n. 18. See in this context the uniqueness of Moses' prophecy as legislator, Galston, “Philosopher-King v. Prophet” (1978)8 Israel Oriental Studies 204, at 213-216; Macy, “Prophecy in al-Farabi and Maimonides”, in Maimonides and Philosophy, supra n. 43, at 185, 192-197.

47 The reference here is to what is said in The Guide, Part III, chapter 15: “The impossible has a stable nature, one whose stability is constant and is not made by a maker. It is impossible to change it in any way. Hence the power over the maker of the impossible is not attributed to the deity”.

48 See Satanov's Commentary, supra n. 31, at 44: “Medicine operates according to the particular illness of the individual. Hence, although the commandments of the Torah are the medicine of both the soul and the body, as it is written ‘For I am the Lord thy Healer’, the physician and the legislator are not of equal status, since the physician must examine the individual patient and not give the same treatment to all his patients, whilst the legislator is concerned with enacting laws beneficial to the generality, even if at times something bad may ensue to the individual for he preserves the good health of all healthy persons or the majority of them, even if doing bad to a minority of sick people”. Cf. on the model of medicine, Englard, I.. “The Example of Medicine in Law and Equity – On a Methodological Analogy in Classical and Jewish Thought” (1985) 5 Oxford Journal of Legal Studies 238, at 244–45. See in addition, Rosin, D., Die Ethik des Maimonides (Breslau, 1876) at 78, n. 4.

49 Cf. Maimonides' use of the (negative) principle against making varying rules (The Guide, Part III, chapter 49) regarding the prescription of the eighth day for circumcision: “He is circumcised after seven days have passed, in this way the matter is fixed: ‘You do not make out of it something that varies’”. See also Resp. Maimonides no. 221.

50 Cf. Rosenthal, supra n. 1, at 199, n. 64, and for Plato's thinking, Ibid., at 205-224.

51 See text at n. 23 supra.

52 See text at n. 29 supra, and see Rosenberg, supra n. 5, at 96.

53 Efodi (Profiat Duran 14th-15th century) ad loc., 1: “There are people who are not perfected through the giving of the Torah to them because of their own great deficiency, although the Torah itself is perfect as will appear to the worthy receiver”. See Shem Tov Ibn Shem Tov, ad loc. and cf. the examples given by R. Asher Crescas (first half of 15th century) ad loc. 2. On the question of the existence of evil, see generally Arieli, N., “Morality in Saadia's and Maimonides' Teachings” (1985) 15 Da'at 5455 .

54 Rosenthal, supra n. 1, at 199, n. 62.

55 Shein, supra n. 33, is incorrect in arguing that the differences between Rosenthal and Rosenberg are only apparent. The differences are very real and affect the understanding of chapter 34. Levinger's attempt (supra n. 36) to narrow the differences is also not acceptable.

56 Although Rosenthal (supra n. 1, at 199, n. 62) does not mention Part III, chapter 41 of the Guide, he refers to the corresponding topic in Mishneh Torah, Hilkhot Mamrim 2:4 .

57 See also Hilkhot Sanhedrin 24:4 .

58 See also Hilkhot Yesodei haTorah 9:3 .

59 See text at nn. 33 and 37 supra.

60 Introduction to the Commentary on the Mishnah, Kafin, R., ed. (Jerusalem, 1963) 1617 .

61 The Guide, Part III, chapter 44. See n. 48 supra.

62 Hilkhot Mamrim 2:4 : “Even as a physician will amputate the hand or foot of a patient in order to save his life, so the court may direct, when an emergency arises, the temporary disregard of some commandments so that the commandments as a whole may be preserved. This is in keeping with what the early Sages said: ‘Desecrate on his account one Sabbath so that he may observe many Sabbaths’ [TB Yoma 85b]”. Ridbaz, R. David ibn Zimra (1479-1573), ad loc. however, observes that “The example [of the physician] is only correct if we regard all Israel as one body … but it appears from our Rabbi that the example relates to the commandments that form a unit and the bet din annuls some of them in order to observe the rest. Yet the example is fitting in both instances”.

63 Levinger, J., “The Place of the Scripture in Maimonides' Thought”, in The Bible and Us, Simon, A., ed. (Tel Aviv, 1979, in Hebrew) 120, at 125132 .

64 Politics II, 8: 1269a 28–8.

65 Mahdi, M., “Alfarabi” in History of Political Philosophy, Strauss, & Copsey, , eds. (Chicago, 1963) 160, 171 . Cf. Macy, J., A Study in Medieval Jewish and Arabic Political Philosophy: Maimonides' Shemonah Peraquim and Al-Farabi's Fusul al Madani (Doctoral Thesis submitted to The Hebrew University, Jerusalem, 1982) 25, 139–40; Macy, “Prophecy”, supra n. 46, at 200, n. 30; Macy, , “The Rule of Law and the Rule of Wisdom in Plato, Al-Farabi and Maimonides”, in Studies in Islamic and Judaic Traditions, Brinner, & Ricks, , eds. (1986) 205232 .

66 Cf. Hilkhot Mamrim 2:4 and n. 62 supra. See also J. Stern, “The Idea of Hoq in Maimonides' Explanation of the Law”, in Maimonides and Philosophy, supra n. 43, at 92, 118.

67 Similar criticism of the position taken by Levinger is levelled by Rosenberg, supra n. 5, at 302-303. In this connection, one may note the warning given by Maimonides against contempt of old laws: Commentary on the Mishnah, Berakhol 9:7 , “‘Despise not thy mother when she is old’ [Proverbs 23:22]. This teaches us that one should not regard lightly the regulations of the Sages even though they have become antiquated and long past”.

68 Rosenberg, supra n. 5, at 97.

69 Rosenberg himself (at 303, n. 32) mentions chapter 32 of the Guide and says: “A similar answer is found in Part III, chapter 32. ‘By way of the land of the Philistines’ [ Exodus 13:1718 ] was the primary intention of the Torah, but this intention required emending because of the state of the people, ‘what they were naturally incapable of bearing’. Hence the need for another route ‘by the way of the wilderness of the Red Sea’, which is the secondary intention”. Rosenberg here is not, to my mind, accurate in presenting Maimonides' understanding of the matter. The diversion of the people through the wilderness is only an example of the focal division of the commandments of the Torah into those which are an end and those which are a means to an end. Here “by way of the land of the Philistines” is not precisely the end, but rather a means unsuitable in the existing circumstances (“for fear of what they were naturally incapable of bearing”). Hence they were turned away to another path in order that the primary intention should be achieved. In the example, the primary intention consisted in the quality of courage: “And just as the deity used a gracious ruse in causing them to wander perplexedly in the desert until their souls became courageous – it being well-known that life in the desert and lack of comforts of the body necessarily develop courage – and until, moreover, people were born who were not accustomed to humiliation and servitude”. Rosenberg, therefore, errs in urging that the primary intention needed correcting because of the state of the people. As will emerge later, only the secondary intention is conditioned by time and place, whilst the primary intention is eternal, being the end itself. If the example is carefully analysed, it will be seen that Maimonides' central concern in presenting it is to answer the main question of what prevented God from endowing the people at the outset with the capacity to engage in wars so that He could lead them by way of the Philistines. On the other hand, it is possible that among the various means to the ultimate end a secondary relationship between end and means exists: see text at nn. 72-76 infra.

70 Berman, L. V., Ibn Bajja and Maimonides: A Chapter in the History of Political Philosophy (Doctoral Thesis submitted to The Hebrew University, Jerusalem, 1959) 100107 .

71 Ibid., at 105-106. The reference apparently is to the well-known statement in Mishneh Torah, Hilkhot Me'ilah 8:8 : “The Sages say that the world exists on account of the sacrifices”. Cf. Maimonides', Commentary on the Mishnah, Menahot 13:11 , and also Twersky, supra n. 43, at 414-415. See also the objections against Berman's view by J. Stern, supra n. 66, at 129, n. 36 and passim.

72 See the discussion in Albo, , Book of Principles, Musik, , ed. & transl. (1930) Book Three, chapters 13 and 14. Albo (15th century) differs from Maimonides, under the influence of Hasdai Crescas' Or haShem, 2:5. See also the polemic against Albo by Ya'akov ibn Haviv (1450-1515), En Ya'akov, beginning of Tractate Megilah. On the principle of the eternity of the Torah, its source and treatment in Maimonides, see Hyman, A., “Maimonides' Thirteen Principles” in Jewish Medieval and Renaissance Studies, Altman, A., ed. (Cambridge, MA., 1967) 119, at 128 (n. 58), 133–136, 142144 .

73 We disagree with the view of J. Stern, supra n. 66, at 116-117, according to whom chapter 34 is concerned with the problem of the Torah's immutability, especially in respect of precepts which are of the nature of Hukkim. In our opinion, the emphasis in the mentioned verse is upon the word one and not on the term Hukka. Maimonides speaks of “decrees” (elahkham) and not of hukkim in the strict sense. Compare also the opening of the sentence: “… matters that are primarily intended in the Law…”.

74 Berman, supra n. 70, at 103-104.

75 Although this interpretation, as I have said, accords well with the rest of the passage from chapter 34 (“the decrees ought to be absolute and universal … only the universal interests, those of the majority, are considered in them”), doubtlessly the expressions “changes in the circumstances of the individuals and of the times”, “not to be dependent on time or place”, may recall to the reader the problem of the adaptation of the Torah on the historical plane and thus the question of emergency regulations in chapter 41.

76 See text at n. 60 supra.

77 Cf. J. Stern, supra n. 66, at 104.

78 TB Baba Mezia 39b.

79 Akedat Yizhak, supra n. 27, at 85b-86. See Kirschenbaum, A., “Equity in Jewish Law” (1984) 13 Da'at 43, at 4850 ; see now Kirschenbaum, “Maimonides and Equity”, supra n. 28.

80 Kirschenbaum, “Equity” supra n. 79, at 50; Kirschenbaum, “Maimonides”, supra n. 28; Levinger, supra n. 36, at 64. For the similar problem of “potentiores” in Roman law see Wacke, A., “Die Potentiores in den Rechtsquellen – Einfluss und Abwehr gesellschaftlicher Uebermacht in der Rechtspflege der Roemer”, in Aufstieg und Niedergang der Roemischen Welt (Berlin–New York, 1980) vol. 13, pp. 562607 .

81 Resp. Maimonides no. 252.

82 Rosenthal, supra n. 1, at 200-204. See text at nn. 19 and 20 supra.

83 The reference is to the phrase “in the usual case”, or in Rosenthal's own translation “for the most part”. Moreover, it has to be remembered that this part of the responsum has not been preserved in the original Arabic, but only in Hebrew translations.

84 See also Hilkhot Temurah 4:13 .

85 Cf. Twersky, supra n. 43, at 78 and 473.

86 Levinger, supra n. 38, at 65.

87 Ibid.

88 Sotah 48a; Gittin 7a.

89 Resp. Maimonides no. 224.

90 The Eight Chapters, chapter 5 (in fine).

91 Levinger, supra n. 36, at 65.

92 Macy, “A Study”, supra n. 65, at 102, 113-114, 152.

93 It should incidentally be noted here that it is interesting that the verse in Psalms 119:126 “It is time for the Lord to work; they have infringed Thy Law” [the Hebrew is ambiguous and may be translated: “It is time to do something for the Lord; infringe the Law!”], which has been interpreted in various places in the Talmud as permitting the breach of a prohibition for a worthy purpose (TB Yoma 69a, Gittin 60a, Temurah 17b), serves Maimonides in different meanings; see Commentary on the Mishnah, Berakhot 9:7 : “When a time of punishment and vengeance is proclaimed, reasons will occur for men to breach the Torah so that judgment falls on them as they merit, and this is an intricately profound subject with repercussions on the question of crime and punishment”; cf. Berakhot 63a. Contrast the use of the verse in the Introduction to The Guide: “God, may He be exalted, knows that I have never ceased to be exceedingly apprehensive about setting down those things that I wish to set down in this Treatise. For they are concealed things … How then can I now innovate and set them down. However, I have relied on two premises, the one being [the sages'] saying in a similar case: ‘It is time to do something for the Lord’ and so on, the second being their saying: ‘Let all acts be for the sake of Heaven’. Upon these two premises have I relied when setting down what I have composed in some of the chapters of this Treatise”. According to some commentators, largely the traditional ones, Maimonides meant to justify the need for writing his work in view of the state in which faith found itself, a state which amounted to a breach of the Torah. Others think that we have here an allusion to a licence to depart from the accepted, somewhat like that given as a matter of necessity to put the Oral Law into writing: see Gittin 60a. Whereas this use of the verse by Maimonides in the Introduction to The Guide may be ambiguous, see Resp. Maimonides no. 2S6; “And we say as regards the prohibitions of the Torah ‘It is time to do something for the Lord, they have infringed Thy Law’, all the more so in amending the ways of prayer”. Here the meaning is clearly to depart from the law, although Maimonides adds: “And this [deviation] tends to avoid profanation of the Deity since there are those who think that with us [the Jews] prayer is a matter of mockery and derision”. See also Resp. Maimonides no. 258.

94 Cf. Macy, supra n. 65, at 257, n. 54.

95 Hamburger, supra n. 16; this is Aristotle's notion of equity in the sense of “direction” (epanortoma).

96 On the uniqueness of Moses' prophecy in Maimonides see supra n. 46.

97 See text at nn. 12-14 supra. This aspect has apparently been overlooked by Goldman, supra n. 45, who concludes that “the closest analogy in halakhic law to epieikeia is actually a form of enforceable supererogation”. In its moral–substantive dimension equity includes non-enforceable behaviour. Moreover, as suggested in the following discussion, Maimonides may in this regard adhere to Aristotle's view.

98 In this context cf. Aristotle, , Nicomachean Ethics V, II 1415 , and also the gloss of S. Scheyer, ad loc., Dalalat al Haiirin – Zurechtweisung der Verirrten (Berlin, 2nd ed., 1920) vol. 3, n. 4, pp. 435-437. See further Kasher, H., “Commandments Between Man and God in the Guide of the Perplexed” (1984) 12 Da'at 23, at 26 .

99 Generally, see Goldman, A., “The Worship Peculiar to Those who have Apprehended True Reality” (1968) 6 Bar Ilan 287, at 306309 . In Goldman's view, the virtues mentioned possess a cosmological meaning without any moral dimension.

100 Generally, see Melamed, A., “Philosophical Commentaries to Jeremiah 9:22-23 in Medieval and Renaissance Jewish Thought”, in (19841985) 4 Jerusalem Studies in Jewish Thought 31 at 3948 (in Hebrew).

101 On this see Pines, S., Studies in the History of Jewish Philosophy – The Transmission of Texts and Ideas (Jerusalem, 1977, in Hebrew) 161–162, 326327 . See also Twersky, supra n. 43, at 500-514, and in particular n. 390 at 511; Berman, supra n. 70 at 40-47; Goldman, supra n. 99, at 303-311; Melamed, supra n. 100, at 46; Altmann, A., “Maimonides' Four Perfections” (1972) 2 Israel Oriental Studies 15, at 24 ; S. Scheyer, supra n. 98, in his gloss to ch. 54, n. 15, pp. 445-448.

102 In this connection see Pines, ibidem, who believes that imitatio dei is particular to the leader possessing philosophical–intellectual excellence. See also Goldman, supra n. 99, at 309-313; but see Twersky, supra n. 43, at 511, n. 390. I incline to agree with Twersky. See further in the text, and especially n. 104 infra.

103 See also Resp. Maimonides no. 23: “Deal with her [the widow's] property as you wish; compassion must not influence the law's decision”. See also Hilkhot Sanhedrin 20:4 .

104 Hence our difference with those scholars, such as Pines and Goldman, who deny any personal moral dimension to the concept of imitatio dei in The Guide. Even if perfect, man is not merely a prophetic leader, at least, in contrast to the essence of God, man is not isolated but lives in the society of other people who are equal to him. Hence, the significance of the qualities of loving-kindness, justice, righteousness and judgment must not be confined to the level of political leadership, parallel to the activity of God in the governance of His creatures. It is man's duty to “translate” the attributes of God's activity – within the bounds of imitatio dei – even in the area specific to him, of human relationship. This “translation” paradoxically is a return to the original meaning of the moral concepts that have their source in the human sphere, whence they passed to the plane of the attributes of divine activity. Maimonides did not regard the descent of the quality of loving-kindness from the exalted plane of divine governance to the human interpersonal level as reducing its value, and his numerous fervent and deeply felt appeals to it bear witness to that.

105 The Guide, Part III, chapter 54; Part I, chapter 54. Cf. Hilkhot De'ot 1:6 . See Twersky, supra n. 43, at 513-514.

106 This is not the place to deal with the complex subject of Maimonides' use of the concepts of hassid (pious person) and hakham (sage) and talmid hakham (scholar). Cf. Macy, supra n. 65, at 92-93, n. 28, and Soloveitchik's, H. short critical remark, “Criteria for the Designation ‘Halakhic Rulings’ – A Response to D. Hartman”, in (1984) 3 Jerusalem Studies in Jewish Thought 685, n. 4 (in Hebrew); Hartman, D., “Maimonides' Epistle on Martyrdom”, in (1983) 2 Jerusalem Studies in Jewish Thought 362, at 388390 (in Hebrew). In addition to The Guide, Part III, chapter 53, see the Commentary on the Mishnah, Avot 5.

107 On imitatio dei in Maimonides, see also Sefer haMitzvot, Affirmative Precept no. 8, and see the epilogue of Resp. Maimonides no. 150, addressed to the disciples of R. Efraim: “And may God have mercy upon him and bless you and assist all of us to engage in His commandments and imitate His ways and understand His uniqueness, Amen and may that be His will”.

108 On the idea of imitatio dei in Judaism, see Rosenberg, , “Vehalakhta biDrakhav” in Israel Philosophy, Kasher, and Halamish, , eds. (Tel Aviv, 1983) 7291 , and the sources cited there; see especially on Maimonides, ibidem, at 74-78. For a comparison with Greek thought, see Shapiro, D.S., “The Doctrine of the Image of God and Imitatio Dei ” (1963) 12 Judaism 5771 .

* Publication of this paper in this issue of the Israel Law Review honouring Prof. G. Tedeschi was made possible by the support of the Israel B. Greene and Sara Mann Greene Fund for Equity Studies.

** Bora Laskin Professor of Law, Faculty of Law, The Hebrew University of Jerusalem

The Problem of Equity in Maimonides*

  • Izhak Englard

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