The Role of Peshara
within the Halakhic Judicial System:
by Rav Moshe Taragin

Page II
A primary question would focus upon the relationship between peshara and classic `Din' (justice). Peshara presents an alternative to the conventional track of justice. How similar are these two tracks? Does peshara represent a completely distinct procedure geared to promote harmony by supplanting justice with compromise; or does Halakha view peshara as an alternate form of justice, processed by a legal court system?

This question might be reflected in the different sources which the gemara cites for the category of peshara. The gemara in Sanhedrin (32b) cites the verse "tzedek tzedek tirdof" (Devarim 16:20 - literally - you should pursue justice) and comments that the repetition of the word 'tzedek' (justice) suggests two forms of justice: classic 'din' - absolute verdicts and peshara - compromise. The simple reading of the gemara would yield a map in which both classic 'din' and peshara are recognized as legitimate forms of pesak. They are derived from the same pasuk and each stem from the word 'tzedek'.

The Yad Rama, however, reinterprets the gemara in a manner which yields the exact opposite conclusion. The gemara, he claims, is not addressing the repetition of the word 'tzedek' in this pasuk in Devarim. Instead it is commenting upon the apparent superfluity of this pasuk in light of the same theme previously stated in Vayikra (19:15) "be-tzedek tishpot amitekha" - you should judge your neighbor justly. Why is it necessary for the Torah reiterate the same notion in a separate pasuk in Devarim? The gemara responds that each pasuk refers to a different manner of resolving disputes. The pasuk in Vayikra, by employing the verb "tishpot" - literally to judge ('be-tzedek tishpot amitekha'), refers to genuine and authentic 'din'. The pasuk in Devarim, however, specifically avoids a verb which would indicate authentic 'din' and instead chooses the generic verb 'tirdof' - justice should be PURSUED. As such this verse refers to peshara which is NOT regarded as a form of din.

In contrast to Rashi who claims that the gemara derives peshara from the same verse as din, the Yad Rama maintains that they are derived from different pesukim; the accent being on the difference between a pasuk which uses the verb 'tishpot' - to judge, and one which uses a verb 'tirdof' - to pursue. Clearly, Rashi and the Yad Rama, in their differing interpretations of the gemara and the Biblical sources, are debating the relationship between din and peshara.

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