from “Morality, Halakha and the Jewish Tradition”, Shubert Spero, Ktav, Yeshiva University Press, 1983, Library of Jewish Law and Ethics
Rabbi Spero was Lecturer in Jewish Philosophy at Cleveland College of Jewish Studies, and Rabbi of Young Israel of Cleveland, Ohio
Morality and Halakha p.166-178.
In order to properly examine the relationship between Halakhah and morality in Judaism, it is necessary that we back up a bit. For the Jew, the effective source of the basic rules he is to follow in his behaviour is the word of God as found in the Torah. These include moral imperatives, ritual commands, and civil laws. The exegetical process called midrash was utilized by the rabbis to “unpack” all of the implications of the written text, to introduce oral traditions, to resolve disagreemts, and to arrive at definitive rulings. The corpus of final and accepted rulings in all questions of Jewish law came to be known as Halakhah. The word comes from the root meaning “to walk” or “to go” and denotes a “way” or “norm” and “procedure.” (1)
As we indicated earlier, those moral rules in the Pentateuch which are particular and specific were explicated, elaborated, and developed by the halakhic process in the same manner as were the ritual laws.(2) Indeed, not only was the logic the same, but often the very same concept would have application in both a problem of morality and a matter regarding Temple procedure. (3) All of this, of course, is as expected. Moral rules are mitzvot, and therefore are authoritative in terms of their source and obligatory from the point of view of the agent. Moral rules in both their positive and negative forms are meant to be observed in real life and ought to be presented in the form of clear guidelines for behavior. This is what Halakhah is designed to do. Hence, it is to be expected that the Jewish moral code will be treated by ad wil find its final form, in Halakhah.
Another reason for the very close relationship between law and morality in Judaism is the historical fact that “Jewish jurisprudence is a national jurisprudence” whose main development took place on alien soil and one of whose objectives was to preserve the identity of the people and ensure its survival. (4) But the survival of the Jewish people, in the light of its transcendent destiny resulting from its covenant with God, constituted a weighty moral consideration which penetrated the Halakhah at many different points, shaping and influencing the law. (5) Moreover, since for a good part of its development, Jewish law lacked the power to introduce coercive measures and enforce the law, it had to depend upon the free consent of the people. This voluntary aspect further enhanced its distinctive moral character.
Is there a morality independent of Halakhah?
Further consideration of our material, however, leads to the conclusion that while much of the moral content of Judaism is incorporated in the Halakhah and there finds its fullest realization, certain special areas of experience, for reasons we shall attempt to discover, seem to lie outside the sphere of the Halakhah. The clearest evidence of this is to be found in the concept of lifnim mi-shurat ha-din, usually rendered “beyond the line of the law” or “beyond the measure of the law” or “beyond the strict law.”
Thus, we find the teachings of Rabbi Yochanan: “Jerusalem was destroyed because they based their judgment solely upon Torah law and did not act lifnim mi-shurat ha-din.” (6) On other occasions, the Talmud, in conscious contrast to the din (law), speaks of a higher standard of behavior which it calls “the standard of saintliness” or the rabbis may sometimes note, “the spirit of the sages is pleased with him.” (7)
As we shall see in examining some specific examples, it appears that there is a sense in which the din (law), which may be equated with the Halakhah, is not self-sufficient. It is conceivable that a person could carry out all the requirements of the din and yet fall short of his moral obligations. (8)
There are some for whom this conclusion is not very palatable, for reasons that have to do primarily with ideology and apologetics. It has become rather popular over the last few decades to describe the essence of traditional Judaism as halakhic Judaism, with emphasis upon the unique role and overriding primacy of the Halakhah. It is to Halakhah, say these publicists, that we are to look if we wish to find the philosophy of Judaism, the aesthetics ofJudaism, and certainly the morality of Judaism. (9)
This is an exaggeration and, in a sense, a distortion. Yet there are those who become so convinced of the all-pervasive role of Halakhah in Judaism that they would strive very hard to make sure that everything a Jew is supposed to do and believe, be it law, morality, custom, philosophy, or even dimly perceived ideals, somehow belongs under the heading of Halakhah. And I suppose you an stretch the term Halakhah until it covers anything you want it to cover. (10) But to do this is to reduce the issue of the relationship between Halakhah and morality to a semantic question. And this is to obfuscate, when we should be trying to elucidate.
The fundamental and universally accepted distinction between halakhah and Aggadah (11) leads us, of necessity, to the conclusion that Halakhah is not an umbrella term which includes all Torah material but rather, in both content and form, is generally to be equated with what we would otherwise call “law,” the Hebrew term din. Therefore, the repeated distinction made by the rabbis between din and lifnim mishurat ha-din raises two questions for us: what this difference consists of, and why the Halakhah could not handle all of the pronouncements of Jewish morality. What is this area of Jewish morality which the tbbis referred to as lifnim mi-shurat ha-din or midat chasidut, “the ways of saintliness”
Lifnim Mi-Shurat Ha-Din
Let us first consider the question of the authority or source of obligam of these wider and more vague areas of Jewish morality. We find at the rabbis had a proof-text or biblical source upon which to append their notion of lifnim mi-shurat ha-din:
“And thou shalt show them the way they shall walk therein and the actions which they shall do.” Rabbi Eliezer of Modi’in says: “and the actions” refers to din proper; “and they shall do” refers to lifnim mi-shurat ha-din. (12)
Thus, the Torah itself urges us to conduct ourselves beyond the measure of the law. Indeed, Rabbi Isaac of Corbeil lists the obligation of lifnim mi-shurat ha-din as one of the 613 commandments. (13) Another passage associated with a broad moral imperative reaching into lifnim mi-shurat ha-din is the command, “And you shall do what is upright and good in the eyes of the Lord.” (14) Yet another source is the verse, “In order that you may walk in the path of the goodly.” (15)
Regardless of how we interpret these passages, their character remains that of imperatives rooted in the Torah. If, then, both the din and the lifnim mi-shurat ha-din have their source in the Torah, in what do they differ? One approach might be to suggest that they differ only in the form in which they are presented in the Torah; i.e., the former are given as particular rules amenable to legal treatment while the latter are received as very general principles or maxims which each individual must apply to his own situation. (16) This, in turn, gives rise to a difference in the method used in achieving compliance. Where you have din you can have enforcement by the courts, but moral principles outside of the Halakhah must wait upon voluntary observance by the individual.
Before we can comment upon this approach, we must explore the possibility that the din and the lifnim mi-shurat ha-din differ in the degree of obligation which they enjoy. Can we look upon the lifnim mishurat ha-din as referring to a corpus of morality within Judaism that might be designated as supererogatory or optional? That is to say, are there any moral actions for which one is not faulted if they are left undone but for which one receives, so to speak, special credit if they are performed? A more thoughtful definition of a supererogatory action, suggested by Alan Donagan, is “an action which promotes an end which is morally obligatory to promote but in a way which is not obligatory because it demands too much of the agent.” (17)
Are The Teachings In Avot Supererogatory?
In his introduction to his commentary on the Mishnah tractate Avoth, the Maharal (Rabbi Judah Loew of Prague) offers the following interpretation of the three different views offered in the Talmud as to how one may become a chasid, or saintly person: (18)
The first view, in which man’s relationship to his fellow is held to be paramount, says: “Let him fulfill all matters pertaining to damages.” Thus one is entitled to be called a chasid if he performs acts of kindness and charity and is most conscientious to see that no hurt or harm comes to his neighbor. The second view, in which man’s relationship to God is paramount, says: “Let him fulfill matters pertaining to blessings.” Thus one cultivates the essence of chasidut (saintliness) by constantly pronouncing the name of God in all of the different situations of life. The third view says: “Let him fulfill matters pertaining to Avot.” In this view, a person becomes a chasid by being perfect within himself and by cultivating moral character traits. Maharal goes on to say that the material in Avot is musar and derekh eretz – i.e., patterns of behavior that our own reason urges upon us.
From this it might appear that the Maharal regarded efforts at personal morality, the development of proper dispositions and character traits, as being outside the framework of mitzvot and averot (transgressions) and “merely” the promptings of conscience and common sense. However, a close reading of the Maharal makes it clear that even though he held that the mili di-avot are not presented in the form of positive or negative commandments, he did not see this as completely negating their obligatory character. For the Maharal, this means that the status of chasid is conferred upon one who develops his character in accordance with the teachings of Avot inasmuch as they represent lifnim mi-shurat ha-din. Therefore, the area of lifnim mi-shurat ha-din is to be identified with the area of personal morality or perfection of the self.
As we indicated in an earlier chapter, the Pentateuch and the prophets thought of morality in terms of particular actions to be done or avoided and demanded adherence to certain general rules of behavior. (19) Even when a degree of abstraction is achieved, it is still pegged to behavior and is presented as a goal of action: “And you shall do the upright and the good”; and “Righteousness, righteousness you shall pursue.” It was in the Book of Proverbs and in the rabbinic teachings as formulated in the Mishnah tractate Avot and in other rabbinic literature that the emphasis is first placed upon personal character development and the attainment of certain inner dispositions that could lead to proper responses and moral behavior. Thus, for example, a person who curbed his appetite for food and drink and learned to eat sparingly would not only avoid the excesses of glutton inebriation but would find it easier to discipline himself against temptation of eating forbidden foods or appropriating what belongs to others. Developing proper character and cultivating proper attitudes, therefore, start the battle for morality at a much earlier phase and can often act as a preventive of serious moral transgression. This is reflected in the teaching: “Think about these three things and you not come into the hands of transgression”; (2) i.e., you will not come their power.
There are some authorities who maintain that the material in Avot does not occupy a special status but can be understood as part of the oral development and explication of the mitzvot found in the Torah such as “Love thy fellow as thyself” and its rabbinic formulation, “Do unto others as you would have others do unto you.” (21) As for the for the obligation to develop decent character traits, this can be in the Torah command “And you shall walk in His ways,” which the rabbis interpreted to mean: “As He is merciful, so shall you be merciful,” construed as a built-in character trait. Others hold that the teachings in Avot are not explanations of mitzvot found in the Torah but oral traditions of teachings revealed independently to Moses at Siani. Hence Avot begins with a preface which recounts the Sinaitic order of transmission: “Moses received the Torah from Sinai…”; (22) for these authorities, the teachings in Avot are as obligatory as the other mitzvot.
For the Maharal, as we have seen, the cultivation of moral dispositions is not directly commanded in the Torah, is not part of the Torah’s system of mitzvot and averot, and is recommended by human reason. While there is, of course, a sense in which “reason” ought obeyed, since that which is rational ultimately reflects the will of our Creator, nevertheless there might be grounds, on the basis of Maharal’s comments, to consider the “path of saintliness” which leads through personal morality as, in some sense, supererogatory and constituting extra piety. For, after all, it is conceivable that a person in his actual behavior may conform to the moral demands of the Torah without restructuring his personality traits. Thus, for example, although a person may easily and frequently become angry, he may exercise strong comtrol over his speech and actions so that no harm comes of it.
Ibn Paquda, Maimonides, And The Morally Optional
There is a view of man’s obligations under the Torah, found in the writing of Bachya ibn Paquda, which leaves no room for the morally optional. (23) In examining the nature of the service that man is dutybound to render God, his creator and benefactor, Bachya initially speaks of a threefold division of human activities: those that are commanded, those that are prohibited, and those that are permitted. The commanded and prohibited are, of course, all of those beliefs and emotions, speech acts, and deeds, whether by commission or omission, which are the subject of specific rules in the Torah. But when he begins to examine the area of the permitted, which covers all of the practical activities involved in preserving one’s health, managing one’s affairs, and transacting business and basic social activities, Bachya makes some further distinctions depending on the manner in which these aforementioned activities are performed.
If, for example, one provides for one’s basic needs in a way which can be regarded as adequate and sufficient, and one does this for the sake of God, then one has actually fulfilled a divine command. For man has been told, “…be fruitful and multiply, replenish the earth and subdue it,” and, “Good is the man who… guideth his affairs with discretion.” (24) However, should one go about these practical affairs in a manner which is extravagant and excessive; should one overindulge in the pleasures of life and the pursuit of riches, against which we have been warned that they may lead to transgression and immorality, then one is doing what has been forbidden. For the Torah warns us: “Be not among winebibbers, among greedy eaters of meat,” and, “In the multitude of words there wanteth not sin,” and, “Labor not to be rich.” (25) Should a person deny himself what is necessary in any of these, but if his motive is neither piety nor a desire for closer communion with God, then he too is doing that which is prohibited. Bachya therefore concludes that in reality all human actions fall into two classes only: those that are commanded and those that are prohibited.
It is clear that Bachya is able to arrive at such a conclusion only because he succeeds in finding some very broad, general imperatives, such as “Know him in all thy ways,” (26) that makes it possible to view any action (like playing golf!), if done “for the sake of heaven,” as the fulfillment of a divine command. It is doubtful however, whether the many passages in the Book of Proverbs which are based on wisdom and the “blessing” to primal man to “subdue” the environment can be viewed as “commandments” in the strict sense.
In considering the view of Maimonides, it appears at first glance that he too is suggesting that the “way of saintliness,” or lifnim mi shurat ha-din, lies beyond the halakhic imperative.” Maimonides identifies the derekh ha-shem – the “path of God” – and the command “And you shall walk in His ways” with the “median way,” or “middle path,” between two extremes; he also calls this “the way of the wise.” The chasid, however, is one who veers away from the median toward one of the extremes. But Maimonides cites no scriptural source to indicate that the way of the chasid is normative and obligatory upon all. Surely, there can be no higher level of morality than to go in the derekh ha-Shem; in other words, the principle of imitatio dei, already identified by Maimonides with the median way.
In the light of Maimonides’ teaching elsewhere, it appears that the way of the chasid, which veers away from median morality, was understood by Maimonides to constitute remedial effort or a sort of moral therapy. (28) That is to say, to develop any of the middot, such as humility or control of anger or gererosity, in a way that deviates from the mean is justifiable only when particular individual must compensate for some natural excess or deficiency. Veering away from the median in the opposite direction of his weakness will train his faculty and ultimately restore the proper balance. To engage in such therapy is temporarily proper and right for such an individual. Generally, however, for Maimonides, there is only one correct moral response for every situation, obligatory upon every individual in a similar situation, and its source and authority is that represents the “way of God.”
Degrees Of Obligation
A remark made by Tosafot, however, may give us a clue as to the possible area for supererogatory or optional morality within Judaism. Noticing that the Talmud, in discussing cases of lifnim mi-shurat ha-din, sometimes refers to thc passage “which they shall do,” sometimes to the passage “and you shall walk in thepathof good men,” and sometimes makes no scriptural reference at all, Tosafot suggests the following distinctions. In those cases where the Talmud explicitly mentions “which they shall do,” we can infer that there is an obligation for the individual to act lifnim mi-shurat ha-din. This is because in these particular cases, had there been others in identical situations, they would be legally obligated to pay. It is only because the particular individuals involved have a special privileged status relative to the situation (Rav Chiyya because he was a moneychanger, and Rabbi Ishmael because he was a sage) (30) that they are legally absolved from payment. It is at this point that the Torah, by its teaching “which they shall do,” morally obligates such individuals to relinquish their special exemption and return to the norm of the law (din).
In the case of Rav Judah and Mar Samuel, the person who finds the purse after the owner despaired of finding it, may legally keep it. (31) However, if subsequently the owner comes and identifies the purse, it should be returned, lifnim mi-shurat ha-din. Here, no passage is referred to, continues Tosafot, because this case, unlike the previous two, does not depend upon the special status of the individual involved. All who find a purse under these circumstances may keep it. Nevertheless, there still exists here some degree of moral obligation stemming from lifnim mi-shurat ha-din, because returning the purse involves no real loss on the part of the finder.
However, in the case where a passage from the prophetic writings is cited, such as, “So that you may walk in the path of good men,” we are not dealing with what can be called a moral obligation. For here Rabbah bar Rav Huna suffered a severe monetary loss because of the carelessness or even neglect of the porters . (32) Yet on the basis of this passage in Proverbs, which calls for compassion, Rabbah is told to return the porters’ garments, which he seized, and to pay their wages, because he could well afford it and the porters were poor and hungry. What Tosafot is suggesting is that a person has a moral obligation to renounce certain advantages of the law that would result in bringing him new possessions. However, he cannot have an obligation to give up what is and what has been his.
In short, acts of benevolence, tzedakot and gemilut chasadim, when performed, are acts of great moral value and significance. However, a person cannot be said to have a moral obligation to seek out and perform such acts in the absence of a situation which demonstrates a need and creates a moral challenge and demand. In the absence of such a situation, the individual who stands on his legal rights cannot be said to have violated any moral principle. Thus, the Mishnah lists “acts of loving-kindness” among those things that have no “measure.” (33) And Bertinoro explains that acts of kindness performed personally with our bodies, such as visiting the sick a burying the dead, have no “measure,” whereas contributions of money to feed the hungry and redeem captives, when opportunities to do these mitzvot come into our purview, have a “measure” – as the rabbis have said: “not more than a fifth [of his profit]. (34) While one has a moral obligation to respond to a present and perceptible need, one does not have moral obligation to spend all of one’s time seeking out people in need. In this sense, gemilut chasadim may be considered supererogatory, since one who indeed goes out of his way to find opportunities for benevolence is certainly following the path of saintliness. (See the accompanying chart, which shows the relationship between those rules which are included in din, those that are lifnim mi-shurat ha-din, and those that are actually supererogatory.)
Principles Now – Details Will Follow
From several well-known comments by Nachmanides we can gain insight into another aspect of the relationship between Halakhah a morality. (35) He makes it rather clear that regarding both personal and social morality, the particular commands of the Torah are not sufficient to cover all situations and all circumstances. There are lacune, interstices, and ever-new possibilities created by technology. The “literalist” or “legalist,” who considers everything to be permitted unless he can be shown “where it is written in black on white” that is forbidden, can indeed operate quite extensively within the area technically permitted by the Torah and yet simply be a boor. (36) One becomes a glutton on kosher food, lustfully overindulge in permitted sexual relations, and waste hours in small talk that is not lashon ha-ra but trivial and banal. Hence, the need for the general exhortation “You shall be holy,” which the rabbis interpreted as, “Sanctify yourself in that which is permitted.” (37)
But the command “And you shall do the right and the good” is for the social morality of the Torah what the command “You shall be holy” is for the personal morality of the Torah. In man’s relationship to his fellow man, the complexity of life is too great and varied to enable a single document or legal system to spell out in terms of particular rules all of the possible “do’s” and “don’ts.” Hence, the Torah’s guidance had to include a general teaching, “And thou shall do the right and the good,” which Nachmanides identified with the lifnim mi-shurat ha-din. Here is his comment in full:
“And our rabbis have a fine interpretation of this. They said: “This refers to compromise and lifnim mi-shurat ha-din.” The intent of this is that, initially, He had said that you should observe the laws and statutes which He had commanded you. Now He says, with respect to what He had not commanded, that you should likewise take heed to do the good and the right in His eyes, for He loves the good and the right. And this is a great matter. For it is impossible to mention in the Torah all of a person’s actions toward his neighbors and acquaintances, all of his commercial activities, and all social and political institutions. So after He had mentioned many of them such as “Thou shalt not go about as a talebearer, thou shalt not take vengeance nor bear any grudge, thou shalt not stand idly by the blood of thy fellow, thou shalt not curse the deaf, thou shalt rise up before age,” and the like, he resumes to say generally that one should do the good and the right in all matters, to the point that there are included in this “compromise” and lifnim mi-shurat ha-din.”
According to Nachmanides, therefore, the obligation to be moral even to the extent of lifnim mi-shurat ha-din is clearly rooted in the Torah. The area of lifnim mi-shurat ha-din, in both its personal and social aspects, differs from the other Torah imperatives only in respect to the form in which these teachings are given to us. Much of the morality of the Torah is given in the form of specific rules – positive and negative mitzvot, such as “Thou shalt not curse the deaf” and “Thou shalt rise up before age,” where the application to the concrete situation is usually clear and uncomplicated.
However, the area of lifnim mi-shurat ha-din was indicated to us by a broad principle, “And thou shalt do the right and the good.” The task of specifying the precise action mandated or prohibited by this vague principle is obviously not a simple one. This inferential process, and the uncertainty that goes with it, tends to put a distance, at least in the mind of the agent, between the contemplatd action and its source in the Torah. The “boor” may think he is operating with Torah license because his particular actions are not explicitly forbidden by the Torah. Actually, they are included in the admonitions: “Ye shall beholy” and “You shall do the right and the good.”
Morality As An Operating Principle Within the Halakhah
However, it is precisely because of the legalistic nature of the Halakhah, which formualtes its teachings in terms of general rules and abstract principles dsigned to apply to a broad class of cases, that we from time to time, in particular situations, ncounter internal conflicts between the moral demands of the Torah ethos and the constraints of the Halakhah. Torah has to be applied to a constantly changing world in which both the physical environment and human behavior patterns take unexpected turns. As a result, Jewish life sometimes finds itself with a fixed Halakhah which, either because of what it is doing or because of what it is unable to do, has unjust and immoral consequences for particular people in particular circumstances. (79) When confronted by such situations in the past, the Torah leaders, sitting either as a judicial body or as the organized Kehilah, found within the halakhic system the authority and the technical means to remedy the situation, eliminate the abuse, and right the wrong. In this way the moral component made its demand heard and was given expression, so that harmony could be restored within the total system.
According to the law in the Torah, two witnesses are required to establish a fact before the courts. (80) Situations arose, however, as a result either of war or of accident, where a husband disappeared and was presumed dead, yet there were no witnesses to testify to his death. (81) In such cases, the rabbis legislated what was known as takkanot agunot, which permitted the wife to remarry on the basis of her own testimony or on that of one witness. (82) The reason behind this enactment was explicitly declared to be a moral one: “In order to save the woman from the status of agunah, the rabbis dealt leniently with her.” (83) Clearly, the rabbis were able to find the authority to set aside a law in the written Torah because of an equally important concern of the Torah: the painful situation of women in such circumstances. Obviously, this original enactment falls short of solving all the problems arising out of the agunah situation, a type of case that continues to challenge rabbinic ingenuity and to trouble the rabbinic moral conscience in our own day. (84)
Another classic case is the famous prosbul of Hillel. According to the Torah, the Sabbatical year cancels any debt resulting from a loan. (85) In the days of Hillel, contrary to the warning of the Torah “not to close their hands to their destitute brother,” people stopped lending money in anticipation of the Sabbatical year. Hillel’s takkanah, designed to remedy this situation, had the creditor assign his notes to the court before the Sabbatical year, which made them no longer liable for cancellation. (86) While scholars continued to debate the grounds for the prosbul for a long time afterwards, the fact is that thc rabbis, through halakhic engieering, were able to obviate a social problem that had become acute in their day – ironically enough, a problem precipitated by a Halakhah that has as its goal the creation of a social condition of justice and equity. (87)
In yet another enactment designed to prevent a seller of goods from taking advantage of a purchaser, the rabbis ruled, contrary to Torah as written, which implies that the transfer of money is sufficient to close a transaction, that a recognized act of kinyan, such “pulling,” would be required in order to finalize the transfer of ownership. (88) Until the act of kinyan occurs, no purchase has taken place. Under the old arrangement, once the transfer of money took place, the seller would cease to concern himself with the care and protection of the goods, which might still be in his possession.
Problems arising out of the illegitimacy of offspring is another a where morality seems to clash with Halakhah. The bastard or mamzer, according to the Torah, is the offspring of forbidden relations and is excluded from intermarrying within the community – unto all generations. Of course, the institution of mamzerut (bastardy) itself raises a moral question. Is this not a case of children being punished for sins of the parents, which the Torah recognizes as unjust? Rabbi Emanuel Rackman points out that the halakhah of bastardy was considered a means of protecting the moral standards of the community and safeguarding the sanctity of the Jewish family. (89) The concep illegitimacy of offspring was designed as a deterrent to immoral acts by others. But in any system of law rules that have long-range and overall beneficial consequences for the group may sometimes have harmful effects on innocent individuals. In such clashes between two different moral claims – between the individual and society – commonsense can surely appreciate the interests of society.
The rabbis were often courageous in their efforts to minimize pain resulting from this sort of problem. In regard to a family suspected of including mamzerim, the rabbis adapted the principle that “Once a mamzer is absorbed into a family he is absorbed.” Thus they prohibited revealing information about a family’s history of mamzerz the reputation of the family involved was generally good. The Talmud records that Rabbi Yochanan swore that he knew mamzerim were present in a certain family yet did not divulge his information, saying, “What can I do? Some of the great men of the generation are among them.” (90) Here again, an approach based on the law itself would tend to ignore the human situation in which it operates and would wage a forceful inquiry to ferret out the mamzer and publicize the information lest he intermarry with some unsuspecting Israelite. Only a keen moral sensitivity to the pain and suffering this might cause can explain the hesitancy of the rabbis to carry out the full implications of the Halakhah.
Related articles Mamzer: “Illegitimate” children in Jewish law
In our day, both in the United States and in Israel, some of the most heated and protracted controversies have erupted over cases such as the ones above, in which halakhic situations involving acute moral dilemmas seem to go unresolved. Many of them have involved women whose status in cases of divorce and chalitzah (release from the obligation of levirate marriage) leaves them vulnerable to blackmail and extortion or, in the case of the agunah, consigns them to a sort of limbo in which they cannot remarry. Other difficult cases that have been much publicized involve mamzerim, the question of “Who is a Jew?” and the status of non-Orthodox conversions. In reporting these issues, the secular press in Israel perceived the rabbinic establishment as largely oblivious to the human aspect and expressive of an overly rigid Halakhah.
Obviously, every legal system will in certain circumstances cause hardship to some or will not immediately answer to the needs of others. As a general criticism, therefore, this cannot be counted as a weakness of the system. The issue that has arisen, however, particularly within the circle of those who live by the Halakhah, is whether or not there is more that can be done by the rabbinic authorities, operating within the system of the Halakhah, to alleviate some of the harsh consequences of the existing procedures. Responsible and respected voices have been heard over the past few years within the Orthodox comrnunity, answering the above question in the affirmative.
Unfortunately, there has been little really serious and substantive discussion of the issues, because a consensus of present-day recognized rabbinic authorities look upon these explicit appeals to human need as constituing extraneous pressures and improper intrusions upon the halakhic process. The so-called liberals, however, insist that these contemporary problems are precisely the kind of halakhic situations that were successfully dealt with by rabbis in the past who saw the moral factor or the element of social justice as a legitimate component of the halakhic process and responded by utilizing the mechanisms available to them within the system.
What emerges from our study is the conclusion that morality is only a specific subject area treated by the Halakhah but the overriding ethos of the entire Torah, guiding halakhic development in certain directions, through a variety of broad, yet clear principles even asit urges the individual to look beyond the din and walk the high ground of saintliness.
A rather unusual function was assigned by the rabbis to the passage in Proverbs that reads: “Her ways are ways of pleasantness and all her paths are peace.” (91) The subject here is wisdom, which the rabbis understood as referring to the Torah as a whole. Sometimes this passage was interpreted to mean that those who observe the Torah expect blessing and pleasantness to follow or that scholars should behave in such a way as to ensure peace and harmony among people. What is of greater interest, however, is the use to which this passage is sometimes put as a decisive factor in determining the Halakhah; as an overarching norm which can be appealed to in deciding matters of Jewish law. (93) It would, therefore, appear that just as the explication and development of the Halakhah was in part guided by rational principles (such as umedana and chazakah) or logical rules of inference (such as kal va-chomer and binyan av), so too was it shaped by the moral principle that “Her ways are ways of pleasantness.” Evidently, the rabbis understood the references to the “ways” and “paths” of Torah as descriptions of the fundamental structures, or a priori categories, to which halakhic development must conform.
A few examples of how this passage was employed will suffice:
1. In commanding the four types of plant species to be taken on the Festival of Sukkot, the Torah stipulates, “And ye shall take you on first day, the fruit of goodly trees, branches of palm trees [kapot temarim], and boughs of thick trees [anaf etz avot], and willows of the brook, and ye shall rejoice before the Lord your God seven days.” (94) In considering the various species that might be referred to by an avot, the Talmud rejects one because it is not “thick” and a second because its boughs do not cover the trunk. A third candidate, however, which is in accord with the textual requirements, is rejected by the Talmud because its needlelike burrs will prick the hands of the worshipper, and after all, we are taught, “Her ways are ways of pleasantness. ” (95) In a similar discussion, the Talmud rejects a prickly candidate for kapot temarim (branches of palm trees) for the same reason – “ways of pleasantness.”
2. In the matter of levirate marriage we are told, “If brothers dwell together, and one of them die and have no child, the wife of the dead shall not be married abroad to one not of his kin; her husband’s brother shall go in unto her and take her to him to wife and perform the duty of a husband’s brother unto her.” (6)
The law is clear that the wife of the deceased falls to her husband’s brother only if there was no son. But what if there was a son at the time of his death but the child dies shortly thereafter? The Talmud rules that the woman remains free of the levirate obligation. Whereupon Rabbi Judah, employing a kal va-chomer, infers from the case of a woman married to a Kohen that in the case of the death of the son, whose presence had bestowed a certain privilege, one reverts to the previous status that would have obtained if there was no son. The Talmud replies by applying the principle of “Her ways are ways of pleasantness.” (7) That is to say, were the law to follow Rabbi Judah, then, if this woman had remarried while her son was alive and now required chalitzah from her first husband’s brother because the son had died, a point of potential friction would arise which could sour this woman’s marriage, contrary to the promise of “Her ways are ways of pleasantness.” (98)
An unusual nuance is given to this principle by Rabbi Solomon Luria: “…that the words of Torah must all be pleasant and of equal consequences; the matter may not be crooked, that one person be joyous and another one have pain.” (99) It is interesting to note that in this case the moral norm of “Her ways are ways of pleasantness” is powerful enough to turn aside a conclusion reached by the use of the logically compelling kal va’chomer.
A fascinating instance of the use of this norm in the post-talmudic literature is found in a ruling by Rabbi Joel Sirkes. The Halakhah states that if a convert dies without having had any issue after his conversion, his property and possessions are considered hefker (ownerless) and can be appropriated by whosoever desires. Rabbi Asher ben Jehiel had been asked whether those who appropriate the property of the convert have an obligation to provide for his burial. He replied that Jewish law knows of no prior attachment of a person’s property for burial purposes, and since these individuals acquired property from hefker, they have no more obligation regarding the burial of the convert than any other Jew. The Tur and Rabbi Jose Karo accepted the ruling of the Rosh (Rabbi Asher ben Jehiel). In opposition to them, Rabbi Sirkes argued that the spectacle of certain individuals taking off with the money of the deceased while others have to contribute for his burial expenses will certainly generate strife and bitterness. But the ways of our Torah are “ways of pleasantness.” Hence, Rabbi Sirkes ruled that before any of the property of the deceased convert can be appropriated, adequate resources should set aside for his burial needs. (100)
In analyzing the various enactments enumerated in the Talmud as having been legislated in response to three moral principles – “Her ways are ways of peace,” “In order to prevent animosity” (mi-penai eivah), and “That they may not quarrel” (delo laisai lintzuyai) (101) – Eliezer Berkovits maintains that these moral principles, although seemingly similar in intent, were applied by the rabbis to different kinds of situaions. (102)
1. Mi-penai eivah applies in instances where two people enjoy a personal relationship and one turns to the other with a personal request that is appropriate under the circumstances. In accordance with this principle, the other person should accede to the request even if din does not require him to do so.
2. Delo laisai lintzuyai applies in situations where a question of ownership may lead to a dispute between individuals. In accordance with this principle, steps should be taken to clarify the question at issue so as to prevent a quarrel from developing.
3. “Her ways are ways of peace” applies in situations where certain types of behavior may offend the dignity of one’s fellow man.
4. “Her ways are ways of peace” also applies in instances where laws of the Torah in matters of social welfare and acts of kindness that pertain only to relations between Jews are extended to non-Jews as well.
CHAPTER 6 Morality and Halakhah
1. See Menachem Elan, Ha-Mishpat ha-Ivri (Jerusalem: Magnes Press, 1975), 1:143 and C. Tchernowitz, Toledot ha-Halakhah (New York, 1945), 1:23
2. See the discussion in Elon, op. cit., p. 152
3. ee above, p. 43.
4. . Silberg, op. cit., p. 83,
5. An example of this is the change that took place in the law regarding the extinguishing of a fire on the Sabbath (Shulchan Arukh, Orach hayyim 334:26, Rema.) While the Talmud and the Shulchan Arukh prohibited the extinguishing of fires on the Sabbath and permitted the rescue only of enough food and clothing for immediate use, the Rema remarks: “All of these aforementioned laws apply only in their day, but in our time, living among the non-Jews, the authorities have already ruled that fires extinguished on the Sabbath, because of the danger to lives which exists.” An unctrolled conflagration in the Jewish quarter or ghetto frequently resulted in looting and pillage and, if Jews resisted, rioting and death. The point is that an awareness of a generalized threat to the Jewish community was sufficient to set aside a well-established halakhic prohibition. See the discussion in Tzevi Hirsch Hayyot, Sefer Torat Nevi’im, Darkhei ha-horaot (Jerusalem, 1958)
6. Bava Metzia 30b.
7. Ibid. 52b and Shabbat 120a.
8. Note the careful wording of the Hazon Ish, “Moral obligations are somtimes one corpus with the halakhic ruling” (chap. 3, of Sefer Hazon Ish Al Anini Emunah, Jerusalem)
9. See J. D. Bleich, “What Must a Jew Believe?,” Jewish Life, 54, no. 1, for an attempt to place Jewish philosophy under the rubric of Halakhah.
10. See A. Lichtenstein, “Does Jewish Tradition Recognize an Ethic Independent of Halakha?” in Modern Jewish Ethics, ed. M. Fox (Columbus; Ohio State Univ. Press, 1975), p. 68
11. See above, p. 44.
12. Exodus 18:20; Mekhilta, Yitro; Bava Kamma 100
13. Sefer Mitzvot Katan.
14. Deuteronomy 6:18; see Rashi.
15. Proverbs 2:20.
16. See Federbush, op. cit., p. 21.
17. A. Donagan, The Theory of Morality (Chicago: University of Chicago Press, 1977)
18. Introduction to Derekh Chayyim, by Rabbi Judah Loew of Prague. The talmudic teaching is in Bava Kamma 31.
19. See above Chapter 2.
20. Avot 3:1
21. Rabbi Jacob Emden in his opening comment in Etz Avot.
22. View of Obadiah Bertinoro in his commentary on the Mishnah
23. Bachya Ibn Paquda, Duties of the Heart, pp.213-217
24. Genesis 1:28, Pslams 112:5
25. Proverbs 23:20, 10:19, 24:4
26. Proverbs 3:6
27. Rambam, Mishneh Torah, Hilkhot De’ot 1;1
28. Rambam, Commentary on the Mishnah, Introduction to Avot, chap. 4.
29. Tosafot, Bava Metzia, 24, “Lifnim…”
30. Bava Metzia 30b, Bava Kamma 100
31. Bava Metzia 24b
32. Ibid. 83a
33. Pe’ah 1:1
34. Ketubot 50a.
35. Nachmanides on Leviticus 19:2 and Deuteronomy 6:18
36. A. Lichtenstein’s elegant translation is, “a scoundrel with Torah license.”
37. See Rashi on Leviticus 19:1
38. Bava Metzia 16a
39. Choshen Mishpat 175
40. Silberg, op. cit., p. 103
41. Teshuvot Maimoniyot, Sefer Kinyan, sec. 32 (quoted by Silberg).
4s. Hilkhot Shekhenim 14:5.
43. Commentary of Rabbi Joseph Karo on Mishneh Torah of the Rambam. This
comment is on Hilkhot Shekhenim 14;5
44. See Etol, op. cit., 2:513
45. See Federbush, op. cit., 18-19
46. Ibid., pp.20-21
47. Maimonides, Guide, p. 392
48. See the comprehensive discussion in Federbush, chaps. 6 and 7. I ain indebted to him for these examples.
49. Ketubbot 50, 69.
50. Kiddushin 32, Yoreh Deah 240.
51. Bava Batra 147, Eruvin, 49.
A. M. Amiel (Bein Adam le-Chavero, pp. 10-11) draws our attention to the discussion in Bava Kamma 20b, as to whether someone who “squats” on another’s property which the owner is not using really has to pay rent! He also points to the Ran in Nedarim 85a as to whether others can freely help themselves to fruit belonging to someone who has taken a vow prohibiting himself from deriving any benefit from it. He infers that the rabbis did not seem to consider property or ownership rights as absolute in the sense that they could be used by themselves, in the absence of any other reason or purpose, simply to deprive others of the use of the said property. This attitude the rabbis associated with Sodom.
52. For a listing of the sources, see Federbush, op. cit., pp.84-85
53. Commentary of the Bayit Chadash (R. Joel Sirkes) on Choshen Mishpat 12;2
54. Elon, op. cit., 1:173
55. See the Me’iri on Bava Kamma 56a
56. Ketubot 77; See the comments of the Rosh
57. Rema, Even ha-Ezer 154
58. See Pines, op. cit. p.66
59. This is perhaps why the moral rules in the Decalogue are primarily negative.
60. Exodus 23:3, Psalms 62, Chullin 134.
61. Ketubbot 84.
62. Auot 5:13.
63. The Talmud and Rashi’s comment on Bava Metzia 33aa is most pertinent.
64. Sanhedrin 10
65. Avot 1:2, 18
66. Silberg, op. cit., pp. 89-91. I am deeply indebted to the late justice Silberg for his insightful analysis of taltnudic law in terms of “formalism” and “quantification” and for his many well-selectcd illustrations. However, drawing the implications of halakhic formalism for the question of lifnim mi-shurat ha-din is my own.
67. See the comment of Rashi on Exodus 21:1
68. Deuteronomy 17:8-10
69. Silberg, op. Cit., p. 42.
70. Ketubot 104a
71. Bava Batra 23b
72. Bava Metzia 24b
73. Ibid 51b, 52
74. Ibid 24b
75. Shevuot 10:9
76. Shabbat 120a
77 Bava Kamma 55b, 56a; Mishnah 6:4.
Jewish law distinguishes between garme, an act which, although indirect, will inevitably and necessarily lead to harm or damage for which the agent is held liable, and gerama, an act which in itself may or may not inflict damage, where the agent is liable by the human court.
78. The concept of causation in Jewish law and philosophy continues to defy precise formulation. See the readings in chap. 6 of H. Morris, ed., Freedom and responsibility, (Stanford, Calif: Stanford University press, 1976), p.85
79. See E. Berkovits, “The Concrete Situation and Halakhah” in Crisis and Faith (new York: Sanhedrin press, 1976), p.84.
80. Deuteronomy 19:15
81. Gittin 2b
82 See discussion in Elon, op. cit., pp.428-434
83. Y3vamot 88a, Tosafot Nazir 43b.
85. Deut. 15:1-2
86. Mishnah Sheviit 10:3-4
87. See discussion in Elon pp.418-420
88. Kidushin 28b
89. Sh’ma, 10/192 (April 18, 1980)
90. Kiddushin 71a; See berkovits, “The concrete situation and halakhah”, p.89