Commonsense and Halacha

 Bava Metzia (30b): Jerusalem was only destroyed because they insisted on following the letter of the law and they didn’t attend to the spirit of the law.

Netziv (Introduction to Bereishis): …The praise of yashrus (straightness) is to reinforce G-d’s judgment in destroying the Second Temple which as a generation of tzadikim and chassidim and those devoted to learning Torah—however they were not yashar in the mundane world. Therefore, because of the baseless hatred in their hearts to each other they suspected that whomever they saw who did not conduct himself according to their opinion in fear of G d —that he must be a heretic. Consequently, this led to much killing and all the evils in the world until the Temple was destroyed. Thus, there was an acknowledgement of the straightness of G-d’s judgment in that He would not tolerate tzadikim like these. Rather he wanted tzadikim who were straight in the world. Because even if the non-straight tzadikim were motivated by religious consideration—such conduct destroys the world.

Rav Yaakov Kaminetsky (Emes L’Yaakov Bereishis 14:14): According to the Halacha, Avraham was not obligated to risk his life to save his nephew Lot…. Avraham risked his life because the Patriarchs were yesharim (straight). That means that their actions were not governed only by the strict letter of Torah law—but by straight thinking.. According to straightness, there was an obligation to try and save Lot… Avraham felt responsible for Lot’s welfare because Lot’s father had died in a furnace because of his belief in the G-d of Avraham. Therefore, according to straightness (menshlikeit) Avraham had to organize his men and pursue after Lot’s captors. In truth the lives of the Patriarchs—which was before the giving of the Torah—was based on the attribute of straightness. This is the meaning of the expression that derech eretz (civility) preceded the Torah… Therefore, this civility and menshlikeit can be expected even from non-Jews.

Malbim (Mishlei 11:3): There is a distinction between yesharim (straightness) and tzadikim (righteous). The yashar is one who naturally goes on the straight path – whether it is in religious thought or matters of understanding. That is because the majority of issues concerning yashar involve understanding (binah) or moral traits and deeds that are rooted in wisdom (chochma). Therefore when it comes to matters of wisdom (chochma) the yashar is distinguished from the tzadik in that the yashar naturally has the inclination in his heart to do good because of the straightness which is implanted in him. In contrast the tzadik’s conduct is based upon having learnt what righteous behavior is and constantly practicing it until the tzadik conquers his baser drives and trains himself to do the opposite of his nature. The yashar is simply expressing his nature. Furthermore the yashar is not concerned with the letter of the law but is concerned with the spirit of the law - until he conducts himself beyond that which the law actually requires….

Netziv(Approbation to Ahavas Chesed): ….It says in Yevamos (79a): There are three inherent characteristics of the Jewish people – they are merciful, shy and they do acts of kindness to others. … Nevertheless there are explicit commands in the Torah to do acts of kindness such as Vayikra (25:35): You shall support your brother who has become poor, Shemos (22:24): Do not lend money with interest. The reason for this is to teach us that besides being obligated to do acts of kindness because we are human beings we have an addition obligation from the Torah – just as we have for all the mitzvos which we wouldn’t know from commonsense. The consequences of having both an inherent commonsense obligation as being part of mankind as well as an explicit command in the Torah is illustrated by the obligation to honor parents. The Torah command teaches that even though there is a command from commonsense that all of mankind is obligated to keep and receives reward for do it, nevertheless G‑d has in addition explicitly commanded us to do it as an aspect of the Torah (Shemos 20:11)… As a Torah mitzva honoring parents is a statute which must be done simply because it was commanded and not because it makes sense. For example if a non‑Jew fathers a child with a Jewish woman, than according to the Torah that child has a mother but no father. Therefore there is a greater obligation of honoring the mother than the father because the honor of the mother is dictated by not only commonsense but also from the Torah. …There are also consequences for lending money to a needy person. Even though it is clearly a commonsense obligation but it is also governed by Torah law. In this case the obligation from commonsense is inconsistent with the obligation of the Torah. The contradiction occurs in regard to charging interest. For example, in the case of a person whose life depends upon lending money with reasonable interest. From the commonsense point of view he still performs a great mitzva of lending money – even with interest – to sustain another person who desperately needs the loan. However the Torah specifically prohibits charging interest. Therefore according to the Torah a Jew would not be able to lend the money and thus he is prohibited from doing the kindness to the other person as well as sustaining himself. [This was explained in Harchev Davar - Bereishis 48:19 – concerning the Tabernacle at Shiloh…]

Rav Kook(Shemonah Kevatzim (1:463):  The people who rely solely on their commonsense - because they are not learned - actually have an advantage in many respects over those who are learned. That is because their natural understanding and sense of decency has not become corrupted by errors that result from scholarship and or by the exhaustion and emotional frustrations that result from the burden of study. Nevertheless the unlearned masses obviously need the guidance of the scholars to know the particulars of the halacha. On the other hand, the scholars need to adopt and utilize as much is possible of the unadulterated commonsense of the unlearned masses – whether it is the approach to life or recognizing the natural moral values. This will result in the continued proper development of their understanding. This approach is even for tzadikim and even for those wicked people who retain a natural part which provides them with the potential to build on their natural power and purity to the same degree as the righteous at their highest level. The same can be said in regards to the nations in their relationship with each other – in particular non-Jew and Jews.

Shulchan Aruch (C. M. 2:1): Every court – even those that do not have semicha from Israel – if they see that the see that the people is corrupted by sin (and thus it is an emergency situation) can issue judgments whether concerning capital punishment or financial matters or any other punishments even without testimony according to Torah standards. This license to go beyond the letter of the law is specifically only for the greatest rabbis of the generation or the community leaders. It has been the practice in every place that the community leaders have the status similar to that of the Sanhedrin in that they can give beatings and punishments as well as appropriate a person’s property – all according to the local practice. Even though there are those poskim which disagree and say that the local communities authorities do not have such powers but can only pressure the community according to the local practices or their actions need to be agreed upon by everyone. 

Toras Avraham(Toras HaSeichel HaEnushi #1) The general rule is for mankind is – everything that commonsense can comprehend – man is obligated to do and he is punished if he transgresses. The more obvious it is the greater is the obligation and the greater is the corresponding punishment. That is because man is beloved in that he was created in the 'image of G‑d' and has wisdom which corresponds to Heavenly wisdom

Toras Avraham[(Toras HaSeichel HaEnushi #2) Seichel is not simply intelligence the faculty which a person understands and comprehends. Seichel is the Truth of Uprightness with which G‑d created Man in order to guide him in life. Man has the obligation that this Uprightness does not get corrupted and distorted and that he be an honest judge to bring things to fulfillment. Man's Torah thus consists not only those of mitzvos which Man was directly commanded by G‑d but also those mitzvos which are dictated by seichel.