As we know, Rosh Hashanah is known as יום הדין, ‘the Day of Judgement’. Yet notwithstanding the awesomeness of Rosh Hashanah which is often likened to being in a courtroom before God as our judge and jury, we also approach Rosh Hashanah with a spirit of confidence because our judge is not just our king (מלכנו) but also our father (אבינו). As such, an oft-repeated phrase in the Rosh Hashanah liturgy is a citation from Tehillim 103:13 which states that כְּרַחֵם אָב עַל בָּנִים רִחַם ה’ עַל יְרֵאָיו – ‘in the way in which a parent shows mercy (רחמים) towards their children, please, God, show mercy (רחמים) on those who fear You’. What this means is that while Rosh Hashanah is the day of judgement (יום הדין), it is also a day where we ask God to infuse that judgement with mercy (רחמים).
The reason for me mentioning this is because the Mishna (Ketubot 9:2) in today’s daf (Ketubot 84a) tells us about a situation when a husband died – leaving behind a wife, a creditor (to whom he owed money), heirs (all of whom sought payment from his property) while – at the same time – he had a deposit or a loan in the possession of others. According to Rabbi Tarfon, the law is that the deposit or the loan should be given to the weakest (i.e. the neediest) one of them (יתנו לכושל שבהן). In contrast, Rabbi Akiva rules that: We are not merciful in judgment (אין מרחמים בדין).
Before proceeding, I must say that the very experience of reading these words of Rabbi Akiva the day after Rosh Hashanah was unsettling. And why? Because for the past two days I have beseeched God to be merciful in judgement, whereas Rabbi Akiva seems to suggest that mercy should have nothing to do with judgement. Beyond this, surely Rabbi Akiva’s statement conflicts with the numerous teachings within the Torah and Gemara which promote mercy in judgement. Given this, how are we to understand what he says here?
Rav Kook addresses this point (see טוב ראי on our daf) where he explains that ‘sometimes, disagreements can arise in terms of the emphasis placed on different values when rabbinic decrees and laws are decided – such as where too much weight is placed on מדת הרחמים (mercy) which thereby means that there is a lack of מדת הדין (justice) being applied in a case – and this is the point on which Rabbi Tarfon and Rabbi Akiva disagree in Mishna Ketubot. Rabbi Tarfon felt [in the case being discussed in the Mishna] that there was a fair balance of מדת הדין and that in such an instance it would be appropriate to give the deposit or the loan to the weakest, whereas Rabbi Akiva was of the view that since the rules of claiming money from the estate already favours orphans (nb. as the Mishna proceeds to explain, in contrast to others, orphans do not need to take an oath), then any further mercy shown in the distribution of the estate would mean that we would lose sight of מדת הדין completely., As such, when Rabbi Akiva says אין מרחמים בדין, he means that there comes a point in legislation where an overcompensation of רחמים can be applied to such an extent that there is no longer an expression of דין whatsoever.
Reflecting on this on the day after Rosh Hashanah, I believe what it tells us is that while we can beseech God to have mercy (רחמים) on us, we should nevertheless remember that Rosh Hashanah is still a day of judgement (יום הדין), and while we hope to be judged on our merits mercifully, we still need to have merits. In fact, it is this very message that should be on our minds during these 7 days between Rosh Hashanah and Yom Kippur, and this is why it is customary to try and seek ways to upgrade our behaviour and our religious practices during these 7 days.
Though each person should identify for themselves their personal upgrades for this time of year, I would like to conclude by acknowledging how today is Tzom Gedaliah which recalls the disastrous physical assassination of Gedaliah, and that the choice to restrict what we put in our mouths today should serve as a reminder for what comes out from our mouths and how there can unfortunately be instances when we character assassinate others through the things that we say to them and about them. Given this, especially during the week when we seek רחמים from God, we should practice this in terms of how we speak and respond to others.
