III
Yosher. In the Hebrew Scriptures there is no one
term that is uniformly translated as equity; however,
the Hebrew term (yosher) and its derivatives, perhaps
more frequently than others, is given the meaning of
equity or equitable. When Isaiah describes the ideal
ruler, he says that he shall judge the poor with right-
eousness, “and decide with equity [with yosher] for the
meek of the lands” (11:4). So, too, the psalmist (98:9)
proclaims that the Lord “is come to judge the earth;
He will judge the world with righteousness, And the
peoples with equity [with yosher].” The term is, how-
ever, often used synonymously with words connoting
righteousness or justice or virtue.
When judged by today's moral standards, some of
the biblical laws seem unduly harsh and even unjust;
but the Jewish tradition has consistently held to the
belief that in addition to the written law, there is an
oral tradition, and that the latter is primary and the
written text secondary. The lex talionis means fair or
monetary compensation in place of wild revenge; the
value of one eye, not two, for an eye. It enjoins the
principle of an equitable relation between the crime
and the punishment, and the principle that all men
are equal before the law and are to be judged by the
same standard. In brief, the interpretation of the text
rejects literalism; the oral tradition admits judgment
according to the voice of justice, humanity, right-
eousness, fairness, or equity. The basic commandment
is not to observe the letter of the law in all its strict-
ness but, rather, “Justice, justice shalt thou follow”
(Deuteronomy 16:20); and justice is often used in ways
which suggest its link with loving-kindness or grace.
In his Mishneh Torah, the classic code of Jewish law,
Maimonides (twelfth century) states that at the outset
of a trial the judges should inquire whether the litigants
desire adjudication according to law or settlement by
arbitration. A court, says Maimonides (pp. 66-67),
... that always resorts to arbitration is praiseworthy. Con-
cerning such a court, it is said: Execute the justice of...
peace in your gates (Zechariah 8:16). What is the kind of
justice which carries peace with it? Undoubtedly, it is
arbitration. So, too, with reference to David it is said: And
David executed justice and charity unto all his people (2
Samuel 8:15). What is the kind of justice which carries
charity with it? Undoubtedly, it is arbitration, i.e., compro-
mise.
While strict constructionists—like the Sadducees and
the school of Shammai—could support their con-
servative, literalist approach by citing the text (Deu-
teronomy 4:2), “You shall not add to the word which
I command you, nor take from it,” the liberal Pharisees
and the school of Hillel could cite as support for their
creative, and even innovating, approach the text
(Deuteronomy 17:8-13) which commands the sub-
mission of difficult cases to whoever is judge at the
time, and to do according to what he decides: “You
shall not turn aside from the verdict which they [the
judges] declare to you, either to the right hand or to
the left.” In the spirit of the latter view, the Jewish
authorities at times proceeded in the face of expressly
contrary laws. Maimonides put the rationale as follows
(p. 141): “Even as a physician will amputate the hand
or the foot of a patient in order to save his life, so
the court may advocate, when an emergency arises,
the temporary disregard of some of the command-
ments, that the commandments as a whole may be
preserved.”
Thus, despite the fact that the written law provides
for capital punishment for numerous crimes, every
effort was made to circumvent the letter of the law;
and the Mishnah—basic compilation of the oral law,
prepared in the second century A.D. from an earlier
compilation by Akiba—reports that a court which
imposed the death penalty once in seven years was
called a court of destroyers, that Rabbi Elizer ben
Azariah said that it was a court of destroyers if it put
one man to death even in seventy years, and that Rabbi
Tarphon and Rabbi Akiba said that if they were mem-
bers of the Sanhedrin, never would a person be put
to death (
Mishnah, 403).
Since the Hebrew Scriptures and classical, Pharisaic
Judaism fail to make a distinction between religion,
law, custom, and morals, and since the Bible places
such stress on equity that the word for it became a
name for Israel—Jeshurun, Yosherun (Deuteronomy
32:15; 33:5, 26)—equity jurisdiction could not become
separately institutionalized but had to be woven into
the very fabric of rabbinic jurisprudence.
