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HAPPINESS—AND UNHAPPINESS—AS LEGALLY SIGNIFICANT CATEGORIES IN JEWISH LAW

Published online by Cambridge University Press:  19 February 2014

Michael J. Broyde
Michael J. Broyde*
Affiliation:
Professor of Law, Emory University School of Law
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Abstract

This essay seeks to place happiness and sadness as values in their proper place in the Jewish legal tradition—as secondary concerns that are properly invoked and considered in cases where Jewish law is indefinite and unclear. This article provides a number of illustrative examples where such is done, and it then seeks to place happiness and its related values in their proper place in Jewish law as compared to other second-tier principles.

Keywords

happinesssadnessJewish lawChief Rabbi Sacks
Type
SYMPOSIUM: PURSUIT OF HAPPINESS IN INTERRELIGIOUS PERSPECTIVE
Information
Journal of Law and Religion , Volume 29 , Issue 1 , February 2014 , pp. 48 - 56
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2014 

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References

1 Ps. 100:3.

2 Kahan, Israel M., Mishnah Berurah, vol. 5 (Jerusalem: Feldheim Publishers, 1989), 477:5Google Scholar. Translations are those of the author unless otherwise noted.

3 See Shulhan Arukh, Yoreh Deah 110–11, 242 and Shulhan Arukh, Hoshen Mishpat 25, each of which codifies many of these rules.

4 See Shulhan Arukh, Orah Hayyim 544:1; Yoreh Deah 228:21.

5 See Shulhan Arukh, Orah Hayyim 467:11, 12; Yoreh Deah 23:2, 31:1.

6 See Shulhan Arukh, Orah Hayyim 464:4.

7 I have compiled a number of examples where joy is invoked as a principle to resolve Jewish law disputes, but for the purpose of this paper, I beg the reader to accept my contention that these cases are paradigmatic.

8 See Shulhan Arukh, Orah Hayyim 518.

9 See Tur and Beit Yosef, Orah Hayyim 518.

10 As this is a matter of doubt on a biblical prohibition.

11 Shulhan Arukh and glosses of Rama to Orah Hayyim 518:1.

12 The question must be understood in context—there were no banks and one would keep money under lock and key in a safe in one's home.

13 Shulhan Arukh, Orah Hayyim 491:1.

14 Kahan, Mishnah Berurah, 518:6.

15 Ibid.

16 See Broyde, Michael J., Marriage, Divorce, and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America (Hoboken, NJ: KTAV Publishing, 2001)Google Scholar.

17 See Shulhan Arukh, Even Ha-Ezer 154; Broyde, Marriage, Divorce, and the Abandoned Wife in Jewish Law, 69.

18 See Rabbi Jacob Tam, Sefer HaYashar, Helek HaTeshuvot § 24.

19 Rama to Even Ha-Ezer 154:21.

20 This decision of the Supreme Rabbinical Court in Israel, written by R. Ovadia Yosef and cosigned by Rabbis Yehuda Waldenberg and Yitzhak Kolitz, was reprinted in R. Ovadia Yosef, Yabia Omer, Even Ha-Ezer 7:23.

21 Shulhan Aruhk, Even Ha-Ezer 154:30.

22 Rabbi Shabbetai ben Meir HaCohen, Gevurat Anashim 72. Rabbi HaCohen also authored the Siftei Kohen [Shakh], a commentary on Shulhan Arukh.

23 For an analysis of what level of coercion invalidates a get (Jewish divorce), see Broyde, Michael J., “The 1992 New York Get Law,” Tradition: A Journal of Jewish Thought 29, no. 4 (Summer 1995)Google Scholar; Malinowitz, Chaim Z. and Broyde, Michael J., “The 1992 New York Get Law: An Exchange,” Tradition 31, no. 3 (Spring 1997)Google Scholar; as well as letters to the editor in Tradition 32, no. 1 (Fall 1997): 99–100, and Tradition 32, no. 3 (Spring 1998): 101–09. For a complete statement of my view on the subject, see Broyde, Michael J., The Pursuit of Justice and Jewish Law: Halakhic Perspectives on the Legal Profession, 2nd ed. (New York: Yashar Books, 2007)Google Scholar.

24 Moreover, none of the commentaries on the Shulhan Arukh other than Pithei Teshuvah express dissent in response to Rama's acceptance of harhakot de-Rabbeinu Tam. In fact, Arukh Ha-Shulhan (Even Ha-Ezer 154:63), as well as other authorities (Maharam Mi-Lublin 1 and 39; Eliyahu Rabbah 1–3; R. Betzalel Ashkenazi 6 and 10; Chief Rabbi Yitzhak Isaac Halevi Herzog, Tehukah LeYisrael Al Pi HaTorah 3:202 and 209), cite Rama's ruling as normative. Rabbi Hagai Izirar writes (Berurim Behalachot Haraayah [R. Kook] p. 243) that the Harhakot de-Rabbeinu Tam “are accepted as the halakhic norm, and it is well known that Rabbinic Courts implement it.”

25 See Rabbinical Council of America (RCA), Convention Resolution, “Sanctions to Be Imposed on One Who Withholds Issuance or Receipt of a Get,” May 1, 2001, http://www.rabbis.org/news/article.cfm?id=100828.

26 Mishneh Torah, Laws of the Courts and the Penalties Placed under Their Jurisdiction 20:4.

27 Mishneh Torah, Laws of Murder and Preservation of Life 1:9. This is far from the full story on abortion in the Jewish tradition, and one should see David Feldman's book on birth control and abortion for more information, but it is a classical text on the “illegality” of false compassion. See Feldman, David M., Birth Control in Jewish Law: Marital Relations, Contraception, and Abortion as Set Forth in the Classic Texts of Jewish Law (NY: New York University Press, 1968)Google Scholar.

28 1 Sam. 15.

29 Mishneh Torah, Laws of Kings and Their Wars 6:1.

30 Ibid. 6:3.

31 Mishneh Torah, Laws of Repentance 9:2; Laws of Kings and Their Wars 12:4.

32 See, for example, the New York Times page dedicated to the conflict in Syria: “Syria—Uprising and Civil War,” http://topics.nytimes.com/top/news/international/countriesandterritories/syria/index.html, last accessed October 14, 2013.