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Maimonides on Equity: Reconsidering the Guide for the Perplexed III:34

Published online by Cambridge University Press:  24 April 2015

Hanina Ben-Menahem
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Extract

The received opinion is that in the Guide for the Perplexed III:34, Maimonides, influenced by Aristotle's seminal discussion, addresses the issue of equity. Some scholars read Maimonides as totally rejecting the Aristotelian endorsement of equity, others as unequivocally accepting it, and still others as accepting it to some degree. The purpose of this article is, first, to argue that in the chapter in question, Maimonides does not address the issue of equity at all, and second, to demonstrate that although Maimonides never articulates an explicit endorsement of equity, examination of his responsa reveals that in decisions on actual cases, he does have recourse to equity where he feels that the circumstances warrant such intervention.

Introduction; Chapter 34 in its context; “And you would be introducing an element of variability into your words;” The physician analogy; Damage from applying the same law unvaryingly; Maimonides' silence on equity; Law and law to be applied; The responsum on listening to music; Equity in the responsa; Conclusion.

Type
Articles
Information
Journal of Law and Religion , Volume 17 , 2002 , pp. 19 - 48
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2002

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References

1. Nicomachean Ethics V:10 (1137b19-24), 2 The Complete Works of Aristotle 1796 (Barnes, J. ed., Ross, W.D. trans., 4th printing, Princeton U. Press 1991)Google Scholar.

2. Id. 1137b27-28.

3. Hamburger, M., Morals and Law: the Growth of Aristotle's Legal Philosophy 93ff. (Biblo & Tannen 1971)Google Scholar.

4. Nicomachean Ethics, supra n. 1, at 1137b22-23.

5. For a review of the articles in question, see Englard, Izhak, The Problem of Equity in Maimonides, 21 Israel L. Rev. 296–332 (1986)Google Scholar.

6. Rosenthal, Eliezer S., For the Most Part (Hebrew), 1 P'raqim 183–224 (1967–1968)Google Scholar. There are two English translations of Maimonides', Guide for the Perplexed: The Guide for the Perplexed (Friedlander, M. trans., 2d ed., Dover 1956)Google Scholar; and The Guide of the Perplexed (Pines, Shlomo trans., U. Chi. Press 1974)Google Scholar; the Pines translation of III:34 is presented in the Appendix.

7. See for example Rosenthal.

8. See Rosenberg, Shalom, And Again on ‘For the Most Part,’ 87–103 in Spiritual Leadership in Israel (Hebrew) (Belfer, E. ed., Dvir 1982)Google Scholar.

9. See Levinger, Jacob S., Halakha and Personal Perfection (Hebrew), 13 Da'at 62–65 (1984)Google Scholar; and Shein, Chaim, “The Majority Rules’—Illusionary Argument? 3 Da'at 55–59 (1984)Google Scholar.

10. Guide, supra n. 6, at 312 (Friedlander trans.).

11. Guide III:32, supra n. 6, at 527 (Pines trans.).

12. Guide, supra n. 6, at 313 (Friedlander trans.).

13. (Author's translation.) See Ģuide, supra n. 6, Appendix, lines 30-31. Cf. Berman, L.V., Ihn Bajja and Maimonides: a Chapter in the History of Political Philosophy, Phd Dissertation (Hebrew U. 1959)Google Scholar, quoted in Englard, supra n. 5, at 317.

14. For an English translation, see Halkin, Abraham, Crisis And Leadership: Epistles Of Maimonides 16–45 (Jewish Publication Socy. 1985)Google Scholar. And see Hartman's discussion there on Maimonides' departure from the law.

15. Maimonides' monumental law code, the Mishne Torah, henceforth referred to as the Code. The chapters cited in this paper can be found in English translation as follows: Books I-II, The Book of Knowledge and the Book of Adoration (Hyamson, M. trans., Feldheim 1974)Google Scholar; Books III-XIV, Code of Maimonides, Yale Judaica Series (Yale U. Press 1942–1972)Google Scholar.

16. Statesman, in The Collected Dialogues of Plato, Bollingen Series 1018–1085, 1063 (Hamilton, E. & Cairns, H., eds., Skemp, J.B. trans., Princeton U. Press 1961)Google Scholar.

17. bShabat 35b; bMegila 18b; bGitin 14a; bBaba Batra 29a; bHulin 9a, 32a.

18. All references to Maimonides' responsa are to Maimon, R. Moses b., Responsa (Arabic and Hebrew), (Blau, Jehoshua ed., Mekitzei Nirdamim 1958)Google Scholar; the English translations are my own.

19. Responsa, p. 395.

20. Responsa R. Abraham the son of Maimonides (Hebrew), #97, 147 (Freimann, A.H. ed., Mekitzei Nirdamim 1937)Google Scholar; my translation.

21. Maimonides, , Commentary on the Mishna, “Introduction to the Mishna” 17 (Hebrew) (Kafih, Joseph ed., Mossad Harav Kuk 1964)Google Scholar.

22. See Averroes' Middle Commentary on Aristotle's Nicomachean Ethics in the Hebrew Version of Samuel Ben Judah 354–356 (Hebrew) (Berman, L. ed., Israel Acad, of Sci. & Humanities 1999)Google Scholar. I am indebted to Dr. Noah Feldman for drawing this source to my attention.

23. Aristotle, , Physics, 11:7–8 (198a-99b)Google Scholar, 1 The Complete Works of Aristotle 338–339 (Barnes, J. ed., Ross, W.D., trans., 4th printing, Princeton U. Press 1991)Google Scholar.

24. Guide III:34, Appendix lines 11-12.

25. Code, Laws concerning the Sanhedrin 24:4, Laws concerning Rebels 2:4.

26. R. Joseph Caspi, Terumat Hakesef, quoted in Rosenberg, supra n. 8, at 91-92.

27. Although the expression “And it is appropriate to be silent about it” is ambiguous, in that it could be construed as applying to the next idea, in which case it would be part of Maimonides' instructions to the parties involved, as it was understood by the editor of the responsa, Blau, I prefer to read it as calling for silence on the part of the judicial officers involved, Maimonides included.

28. Supra n. 20.

29. Guide, supra n. 6, at 344 (Friedlander trans.).

30. A notable exception is Chajes's, R. Zvi HirschDarkei Hahoraa, in his Collected Works (Hebrew) (Divrei Hakhamim 1958)Google Scholar.

31. bBaba Batra 130b.

32. Rashbam (R. Solomon b. Meir), Ritba (R. Yomtov of Seville), R. Joseph Halevi ibn Migash, R. Meir Halevi Abulafia, in their commentaries on bBaba Batra 130b.

33. Responsa, supra n. 18, at 399.

34. Id. at 400.

35. See also Code, Laws concerning the Fundamental Principles of the Torah 7:4, and see Levinger, supra n. 9.

36. Responsa, supra n. 18, at 3.

37. Id. at 4.

38. On the lethal wife in Maimonides' jurisprudence, see Friedman, M., Tamar, a Symbol of Life: the “Killer Wife” Superstition in the Bible and Jewish Tradition, 15 AJS Review 23–31 (1990)CrossRefGoogle Scholar; and Grossman, A., From the Legacy of Sephardi Jewry: the Attitude toward the “Killer Wife” in the Middle Ages (Hebrew), 67 Tarbiz 531–561 (1998)Google Scholar.

39. Responsa, supra n. 18, at 23.

40. Id.

41. Id. at 24.

42. Id. at 386.

43. Id. at 387.

44. Id. at 51.

45. Id. at 53.

46. Id. at 77.

47. Paraphrasing bYoma 82a: that is, if their iniquitous cravings must be satisfied, let it be done in a minimal way.

48. bBerakhot 54a. (Biblical quotations are from the New JPS translation.).

49. See Ezra 10:10-44.

50. Responsa, supra n. 18, at 374-375.

51. R. David b. Solomon ibn Zimra (Spain 1479-Israel 1573), Responsa, pt. 5, #1686 (485).

52. The question asked was as follows:

QUESTION

Teach us our master. Reuben sold Shimon goods, to be paid for at a later date, for one dinar; and the goods were worth only two thirds of a dinar. And he wrote him a promissory note due on the agreed-upon date. When the time came, Reuben demanded payment, but Shimon argued that Reuben had defrauded him, saying that he had witnesses to testify that at the time he bought them, the goods were only worth such and such an amount. {If Shimon, after he brings the witnesses, proceeds to pay him no more than what the goods are worth, is he within his rights [to deduct the difference], or not? If Shimon brings no proof, Reuben is obliged to take the consuetudinary oath that he did not defraud Shimon.} As it happened, Reuben agreed to defer payment for two months, on condition that the debt be transferred to someone else. And the brother of Shimon, Levi, signed a bond guaranteeing payment of the said sum in two months. Can Shimon later claim the difference? Is Levi obliged to pay this debt to Reuben from his own funds while Shimon is there? Can Levi make a claim against Reuben, as Shimon had made a claim against him, because of the surcharge? Instruct us our Master, and may your heavenly reward be doubled. (Responsa, supra n. 18, at 600).

Maimonides' reply was mistakenly interpolated into the text of the question by a copyist, who, apparently not realizing that the comments constituted the reply, reformulated them as questions by adding interrogatives, and inserted them into the question. The interpolation is enclosed in brace brackets.

53. Id. at 600.

54. Pines translation of the Guide. The reader should note that in the body of the paper other translations are sometimes used. Pines italicizes all the phrases that appear in the Guide in Hebrew.