Halakhic Positions of Rav Joseph B. Soloveitchik
Speaking Lashon HaRa Against a Jew Living In Eretz Yisrael Is Like Speaking Against Eretz Yisrael
by R. Aharon Ziegler
The Gemara Sanhedrin (6b) presents a machloket (dispute) on the subject of Peshara. According to Rabbi Eliezer ben Rabbi Yossi HaGelili it is forbidden for a Beit Din to make a Peshara between two litigants. He believes that a Dayan (judge) who engages in compromises is a sinner and insults the name of HaShem. Peshara has its place-but only outside of Beit Din, but not so with judges. A judge must adhere to the strict letter of the law.
Rabbi Yochanan ben Korcha takes the opposite view on Peshara. He believes that not only is it permissible for judges to make Peshara but it is a Mitzvah to do so. Rabbi Yochanan explains that a Peshara achieves both Emet VeShalom (truth and peace). The Halacha is decided in favor of Rabbi Yochanan.
Rav Soloveitchik identified with the view of Rabbi Yochanan, and in support of this option, he explained the passuk in Tehilim (82:1)) “Elokim Nitzav Ba’adat Keil, Bekerev Elokim Yishpot”, [G-d stands in the Divine assembly, in the midst of judges shall He judge] that G-d is present not just when Dayanim adjudicate cases on the basis of din and mishpat, but also in cases of Peshara. When dayanim form their judgment on both strict law as well as fairness, then justice and charity, stemming from their intuitive sense of rightness, will prevail beyond the strict letter of the law. When a Dayan achieves Peshara, it reflects both Torah sensitivity and love of his fellow man for it is the social harmony that is the primary concern of the Dayan. And when that happens G-d Himself is present in all His glory, for He too combines tzeddakah u’mish’pat, emet and chesed, without which we as individuals and we, as a collective society could not survive.