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Rabbinic Legal Reform: Tikkun Olam and Reproductive Rights and Duties

&quotTikkun&quot as an aspect of a legal system to adjust laws so there is social harmony
Noam Zion is a Senior Fellow Emeritus of the Kogod Research Center at the Shalom Hartman Institute since 1978. He studied philosophy and holds degrees from Columbia University and the Hebrew University in Jerusalem. He studied bible and rabbinics at the Jewish Theological Seminary of America and the Hartman Beit Midrash. In the past, he led the Tichon program for North American Jewish educators and he teaches in Hartman Institute rabbinic programs: the Be’eri program

David Hartman , my teacher, has taught that the greatness of a legal system lies in its ability to correct itself, just as the market system needs mechanisms for constant feedback, reform and adjustment in light of the unforeseeable interactions between law and nature. On the moral-spiritual and personal level the analogue to the self-corrective legislative system is the teshuvah system of individual repentance, while in politics periodic democratic elections are thought to allow and to encourage correction of government excesses. Tikkun ha-midot, correcting one’s character flaws, is of the same cloth as tikkun haguf, repairing and keeping up the health of the body politic.
The technical term tikkun olam first appears in the Mishna Gittin 4-5 among a cluster of laws which had to be adjusted by the Rabbis to avoid unintended negative side effects. In its context in the Mishna, what needs tikkun is not the world but the legal system. It must be mended though activist legislation. It is the interaction of the letter of the law and human behavior that inadvertently produces negative social consequences. Fixing or adjusting the laws, then, fixes or "fiddles" with the social world as it interacts with the legal system. The legal philosopher Suzanne Last Stone explains:  
Takkanot adjust laws to changed circumstances. They ‘straighten’ out irregularities which have developed over time….The ideal of tikkun olam implies the process of adjusting laws to historical and contingent circumstances, so that human beings can live in social harmony.  
Somewhat analogously, the Western legal tradition, going back to Aristotle, has recognized that positive law, the letter of the law, must be modified in the name of equity or fairness, since following the law does not automatically coincide in practice with justice.
“The interaction of legal justice and common decency is equity. ‘Equity,’ Aristotle writes, ‘though just, is not legal justice, but a rectification of legal justice.’ It is the virtue that adjusts the letter of the law to particular cases, not necessarily because there is a defect in the law, but because ‘the material of conduct is essentially irregular. When therefore the law lays down a general rule, and thereafter a case arises which is an exception,’ the person of common decency attempts to ‘rectify the defect by deciding as the lawgiver would himself decide if he were present."
Equity is concerned with exceptional cases – the individuals in their uniqueness that have been inadequately addressed by general rules. But in the Rabbinic tradition the modification of law “for the sake of Tikkun Olam,” is not only about justice for individuals who fell between the cracks but also about the welfare of the social world, the public good.
Moshe Halbertal has traced the origin of tikkun olam to its Mishnaic context in which olam means the human world as situated in the physical environment. Tikkun Olam’s earliest usage in Rabbinic literature refers to the civilizational mission to settle the world.  
One who is half a slave and half free – works for his master and for himself on alternate days. This was the ruling of the school of Hillel.
But the school of Shammai said: You have fixed (tikkantem) matter for the master but not for the slave. It is impossible for him [being half-slave and half-free] to marry a female slave because he is half-free. It is impossible for him to marry a free woman because he is half-slave. Shall he then remain idle [unable to procreate with a legal framework]?!
Wasn’t the world made to be populated, as it says, God did not create it as waste, but formed it to be inhabited (Isaiah 45:18)?!
For the sake of tikkun olam, therefore, his slave master must be compelled to liberate him and give him a bond [a loan] until he can repay the purchase price.
The school of Hillel thereupon retracted [their position] and ruled as did the school of Shammai.”
(Mishna Gittin 4:5)  
In the ancient world, human civilization was considered vulnerable to depopulation and to the return of cultivated nature to a wild, infertile, uninhabitable wasteland. This is the opposite of today when our greatest concern is overpopulation and the destructive effects of human industry on nature.
The Mishna cites Isaiah 45:18 where God’s concern for procreation is related to the desire to settle an otherwise uninhabited and uncivilized world. Then it confronts the contradiction between that grand Divine scheme and the unfortunate legal marital situation of a slave whose owner liberated only half of the slave. Property rights and Divine plans collide. In the initial case the half-slave and half-free status of the servant generates a Catch-22 situation where the slave is damned if he does and damned if he doesn’t. Then Hillel’s school attempted corrective measure makes things worse while trying to make them better. The slave is now unable to marry. That affects negatively not only his natural rights but God’s telos for the world – human reproduction to maintain civilization i.e., tikkun olam. So Shammai’s school cites Isaiah’s paean to the Creator and the Creation:  
For thus said Adonai, the Creator of heaven who alone is God,
Who formed the earth and made it, Who alone established it
God did not create it a waste [tohu], But formed it for habitation:
I am Adonai, and there is none else" (Isaiah 45:18)
The prophet recalls God’s creation of order out of chaos, tohu, translated here as “waste” and God’s mandate to all human beings: Be fertile and increase, fill the earth and master it; and rule the fish of the sea, the birds of the sky, and all the living things that creep on earth. (Gen. 1:28)  
As Sagit Mor shows there are many other examples of “modification” (tikkun) of the law in this Talmudic section that refer to borderline legal cases of personal status affecting marriage and hence reproduction. She sums up the first meaning of tikkun olam as a matter of repairing the "world," rather than merely a tikkun for individual rights:
“The [1st C. legal] schools of Hillel and Shammai dispute the legal-personal or public status of Canaanite slaves of a mixed status caught in a no-man’s land between slavery and freedom. The halakhot seek to eliminate this borderline status and to classify each person as either entirely enslaved or free….The perspective of the school of Hillel is thus economic and instrumental, and does not take into account a potential problem for the slave. ..
 The school of Shammai …relocates the discussion, moving it from the realm of labor relations to the question of humankind’s place in the created world. In practical terms, the school of Shammai therefore seeks to resolve a problem in the domestic sphere of the partially freed slave, but through reasoning that relates not to his individual rights but, rather, to his purpose in the world. … The resolution of the personal-legal status of the semi-manumitted slave enables the individual to avoid an otherwise intolerable reality in which one would be a full member of neither group and, as a result, be denied the possibility of contributing to the population of the world.”
“The school of Hillel’s "master’s enactment’ is therefore limited to improving the economic state of a single individual – the master. Conversely the “slave’s enactment" is to be understood as tikkun olam for its objective is not the betterment of one party’s situation, but rather the improvement of the entire world, in its relationship with God … The primary meaning of the term tikkun olam is a mechanism for the ensuring that the commandment to reproduce, as a way of populating the world, be upheld within the halakhic limits regarding these matters.”

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