Halakha and Morality
Theological Issues In Sefer Bereishit
Yeshivat Har Etzion
LECTURE #23: HALAKHA AND MORALITY
By Rav Chaim Navon
DOES RELIGION RECOGNIZE THE EXISTENCE OF MORALITY
The relationship between Halakha and ethics is by no means a simple issue. The classic starting point for discussing this question remains the famous passage from Plato's dialogue, "Euthyphro," a passage that we already cited in our lecture on the reasons for the mitzvot. Plato raises there a fundamental question: Does a religious world-view leave room for morality and good as independent standards? Plato formulates the problem as follows: Does God desire good because it is good, or is something good because God desires it? In other words, do good and evil exist independently of God, and God chooses that which is good? Or perhaps there is no such thing as independent good, and the term "good" merely represents that which God has arbitrarily chosen. According to the second possibility, there is no inherent difference between charity and murder. Neither act is "good" or "evil" in and of itself. The sole difference between them is that God chose the one and not the other, but He could just as well have chosen in the opposite manner.
The question raised by Plato has no simple answer from a religious perspective. On the one hand, it is difficult to say that good exists independently of God's will, for that would in essence mean that God is subordinate to something outside of Himself. On the other hand, it is no less difficult to assert that good and evil do not exist, and that God charges us with arbitrary commands. Both approaches find expression in Christianity and Islam. I believe that my revered teacher, HaRav Aharon Lichtenstein, once said that it is difficult to find examples of the second approach in the Jewish world. Indeed, it is difficult to find a Jewish thinker who claims that good and evil do not exist independently of God's will. This may, perhaps, be due to the fact that already the book of Bereishit presents us with an unequivocal stand on this issue in the dialogue between Avraham and God regarding Sedom.
And the Lord said, Because the cry of Sedom and Amora is great, and because their sin is grievous; I will go down now, and see whether they have done altogether according to the cry of it, which is come to me; and if not, I will know. And the men turned their faces from there, and went toward Sedom; but Avraham stood yet before the Lord. And Avraham drew near, and said, Will You also destroy the righteous with the wicked? Perhaps there are fifty righteous within the city; will You also destroy and not spare the place for the fifty righteous that are therein? Far be it from You; shall not the Judge of all the earth do right? And the Lord said, If I find in Sedom fifty just men within the city, then I will spare all the place for their sakes. (Bereishit 18:20-26)
One cardinal point stands out in Avraham's exchange with God: Avraham assumes that God acts according to moral criteria. And furthermore, God's moral criteria are understandable to man. The argument might have been made that absolute standards of good and evil do in fact exist, but they are incomprehensible to man. Avraham, however, does not accept such a position. Avraham approaches God with a moral claim: "Shall not the Judge of all the earth do right?" God does not reject Avraham's contention, but rather He accepts his argument. This appears to be the primary source for the Jewish position that assumes the existence of an absolute moral good that is not determined arbitrarily by God.
A classic example of the Jewish point of view may be found in the words of Rambam. Rambam maintains that God's will is moral and rational. He also goes one step further, applying this position to the world of mitzvot as well. Rambam argues that God's commandments are not arbitrary, but rather they stem from moral and reasoned rationales (Guide of the Perplexed, III, 31).
MITZVOT AND MORALITY
Thus far we have argued that, as a rule, Judaism recognizes the position of morality. We have seen that for Rambam this determination is correct with regard to the mitzvot as well. Now let us examine the degree to which Halakha accords with human morality in actual practice.
MITZVOT THAT APPEAR WANTING FROM A MORAL PERSPECTIVE
There are many mitzvot which can be easily reconciled with our standards of morality. These include most of the social mitzvot, e.g., "You shall not steal" and "You shall love your neighbor as yourself." The problem begins with those moral imperatives that do not express themselves in the mitzvot. How are we to relate to moral values that find no expression in the halakhic system? My revered teacher, HaRav Yehuda Amital, often cites the author of Dor Revi'i a great-grandson of the Chatam Sofer regarding the prohibition to eat human flesh. Technically, it is merely an issur aseh a prohibition that is not stated in the Torah in the form of a negative commandment, but merely inferred from a positive commandment. The moral taboo that accompanies it, however, gives it great weight:
And furthermore, you should know that as to all the loathsome things that man finds despicable, even if the Torah had not forbidden them, anyone eating such things would be regarded as being far more abhorrent than one who violates an explicit Torah prohibition According to Rambam, [the eating of] human flesh is only forbidden by way of an inference from a positive commandment, and according to Rashba it is outright permitted by Torah law. But tell me now, a mortally ill patient having to choose between meat from an improperly-slaughtered or congenitally defective animal and human flesh which should he eat? Do we say that he should eat the human flesh which is not forbidden by a Torah prohibition even though it is forbidden by the moral code accepted by civilized man, so that anyone eating or feeding another person human flesh is cast out from the community of men rather than eat meat which the Torah forbids with a negative commandment? Would it enter your mind that we, the chosen people, a wise and understanding people, should violate this moral code in order to save ourselves from violating a Torah prohibition? For whatever is abhorrent in the eyes of the enlightened nations is forbidden to us by virtue of the commandment, "You shall be holy." Whatever is forbidden to the entire species of enlightened man by virtue of a moral code, cannot possibly be permitted to us, a holy people. (Introduction to Dor Revi'i on Chullin)
The Dor Revi'i argues that in a case where one's life is in danger, it is preferable that one eat non-kosher meat and not human flesh, despite the fact that, halakhically speaking, the prohibition of eating human flesh is the less severe one. This case is highly problematic, for it involves a moral claim that directly collides with a solid Halakhic prohibition. We may, however, derive from Dor Revi'i the following principle: even that which is not explicitly prohibited by the Torah may be forbidden to us by virtue of a universal moral code. To illustrate this point he cites the prohibition to go out naked into the street. Is it possible that a man is forbidden to dress up in a woman's clothing, but he is permitted to go about in public stark naked? The Dor Revi'i bases these prohibitions on the general mitzva, "You shall be holy," which Ramban explains as is the case with the verse, "And you shall do what is righteous and good" as relating to all the fitting deeds that are not specifically spelled out in the Torah.
Rav Nissim Gaon relates to the seven commandments that are binding upon all the descendants of Noah, even non-Jews, regarding whom there is no general command resembling that of "You shall be holy." He argues that all human beings are bound by moral imperatives, even when there is no explicit Divine command. In the absence of such a command, man's conscience can also bring him to recognize God's will:
All the mitzvot that depend upon reason and the heart's understanding were already binding upon all men from the day that God created man on earth Even though these mitzvot (= the seven commandments binding upon all the descendants of Noach) are derived from Scripture, as it is written, "And the Lord God commanded" they are not merely received commandments, for the obligation to know God and obey and serve Him are fitting by way of the law of the intellect; and the shedding of innocent blood and stealing are forbidden by virtue of the path of reason. (Rav Nissim Gaon, introduction to Sefer Mafte'ach)
Thus far, we have discussed moral values that are not explicitly mentioned in the Torah. Another issue, very similar to this, involves those mitzvot which appear to be directed toward the perfection of morals, but nonetheless do not seem to satisfy our moral standards. The classic example is slavery. The Torah did not invent slavery, but neither did it negate it. In this case the Torah does not seem to stand up to our moral standards.
Chazal already confronted this issue with respect to the law regarding a non-Jewish female prisoner of war, which allows the capture of a non-Jewish woman during wartime, and her forced conversion to Judaism and marriage to her captor. Chazal assert that the mitzva has a moral objective. Since, however, God understood that the Jewish people living in that generation would be unable to observe an absolute prohibition, He was satisfied with various restrictions that would minimize the moral offense:
Our Sages have taught: "Of beautiful appearance" [here] the Torah only speaks in consideration of the evil inclination. It is better that Israel eat the flesh of animals on the point of death but ritually slaughtered, rather than eat of carcasses unslaughtered. (Kiddushin 21b-22a)
Ramban understood that the problem with a female prisoner of war lies in the injury it causes to the sanctity of Israel. Rambam, however, understood that we are dealing here with a moral issue:
This book also includes the law concerning the beautiful [captive] woman. You know their dictum: [Here] the Torah only speaks in consideration of the evil inclination Even though his evil inclination overcomes him and patience is impossible for him, he must obligatorily bring her to a hidden place And as [the Sages] have explained, he is not permitted to do her violence during the war. And he is not allowed sexual intercourse with her for the second time before her grief has calmed down and her sorrow has been quieted. And she should not be forbidden to grieve, to be disheveled, and to weep; as the text says: "And she shall bewail her father and her mother, and so on." For those who grieve find solace in weeping and in arousing their sorrow until their bodily forces are too tired to bear this affection Therefore the Torah has had pity on her and gave her the possibility to do so until she is weary of weeping and of grieving. (Guide of the Perplexed, III, 41)
Rambam explains that the Torah took pity upon this unfortunate woman, but was unable to totally forbid the injustice done to her. It, therefore, tried to minimize the damage to the extent possible. Chazal provide us with a key to understand those mitzvot that do not appear to satisfy our moral standards. In many such instances, the Torah aims to counteract the evil inclination, but it knows that it cannot totally dislodge deeply rooted social practices, but only limit them as much as possible. In such cases, the Torah would certainly look favorably upon further developing the goal of the mitzva, to the point of absolute negation of the moral injustice.
The problem arises in its most acute form with regard to mitzvot that clearly contradict our moral standards. The starting point must be that when a mitzva clearly contradicts our moral principles, we must, without a doubt, follow the mitzva. Proof to this may be adduced from the story of the Akeida. The very same Avraham who expected that God conduct Himself in a moral manner was himself prepared to execute an absolutely immoral Divine command without any protest or hesitation. Our duty to God supercedes our duty to moral principles.
In general, however, we try to avoid such a situation. But from where do we derive the authority to fashion the mitzvot in such a manner that they do not clash with morality? It seems that we may learn from the example presented by Moshe Rabbenu:
And the Lord spoke to me, saying Behold, I have given into your hand Sichon the Emorite, king of Cheshbon, and his land; begin to possess it, and contend with him in battle And I sent messengers out of the wilderness of Kedemot to Sichon king of Cheshbon with words of peace, saying. (Devarim 2:2-26)
God commanded Moshe to fight Sichon, and yet Moshe sent him messengers of peace. How did Moshe dare to deviate from the instructions received directly from God? Rashi explains the matter as follows:
Although the Omnipresent had not commanded me to proclaim peace upon Sichon I learnt to do so from what happened in the wilderness of Sinai, i.e., from an incident that relates to the Torah which pre-existed the world. For when the Holy One, blessed be He, was about to give the Torah to Israel, he took it round to Esav and Ishmael. It was manifest before Him that they would not accept it, but yet He opened unto them with peace. Similarly, I first approached Sichon with words of peace. Another explanation: From the wilderness of Kedemot: Moses said to God, I learnt this from You who was in existence before the world. You could have sent one flash of lightning to burn up the Egyptians, but You did send me from the wilderness to Pharaoh, to say, Let my people go. (Rashi, ad loc., following Chazal)
Chazal tell us why Moshe dared to veer from the simple meaning of God's instructions. When Moshe came to interpret God's words, he took into consideration what he knew of God's moral nature. Indeed, according to the plain meaning of what God said, He seems to have desired immediate engagement in battle. If, however, we consider also the moral values to which God had already proven that He was devoted, we must interpret those words differently: God apparently meant that we must first approach Sichon with words of peace, and only afterwards, if there is no other alternative, must we go out in battle against him. In this case, the moral consideration does not contradict God's word, God forbid, but rather it serves as an exegetical tool that may help us understand the true will of God.
We find this principle many times in the words of Chazal. It should be emphasized once again: we are not dealing here with a "show" or a perversion of God's word. We are using moral values as an exegetical tool, based on the sincere belief that they can truly assist us in deciphering God's will. Obviously, there are also other exegetical considerations which must be taken into account. Those considerations may sometimes overwhelm the moral considerations, in which case we will find ourselves facing a mitzva that, in our eyes, contradicts morality. In such a situation, we must prefer the mitzva to our moral principles, on the assumption that God understands better than us what is good and what is fitting. In general, however, we try to the best of our ability to interpret the mitzvot in such a manner that they correspond to the moral values reflected in the Torah, and which, in our opinion, reflect the will of God.
Let us now consider a number of examples where moral values are treated as legitimate exegetical tools. Firstly, with regard to the famous halakha that "an eye for an eye" means financial compensation:
"An eye for ['tahat'] an eye " (Shemot 21:24).
Even though it is possible to explain the word 'tahat' in its literal sense, Chazal decided to support the tradition that the verse refer here to money. For Chazal understood the Torah's thinking, for its ways are pleasant, and the Torah cannot possibly have commanded something that will bring no benefit to the community and only damage to the individual. This is not the case if we interpret the word 'tahat' as referring to money, for the injured party will at least receive monetary compensation for the loss of his eye. (Rabbi Barukh Epstein, Torah Temima, ad loc., no. 171)
Rabbi Epstein argues that Chazal interpreted the words "an eye for an eyes" as referring to financial compensation, because had they understood the words in their literal sense, we would be left with a cruel law that in no way benefits the injured party. This is a moral consideration.
A second example is found in the commentary of Ibn Ezra:
And the second kind are the mitzvot with hidden rationales, regarding which it was not stated explicitly why they were commanded. And Heaven forbid that one of those mitzvot should contradict sound reasoning. It is just that we are obligated to keep all that God has commanded us, whether or not its secret has been revealed to us. And if we should find that one of them contradicts sound reasoning, it is not right that we should believe that it must be understood literally. Rather, we must seek its rationale in the works of our Sages of blessed memory, when it is to be understood metaphorically. And if we do not find this in writing, we should seek it ourselves and search for it to the best of our abilities, perhaps we can fix it. And if we are unable to do so, we should let it rest as is, and admit that we do not understand it. As in the case of "And you shall circumcise the foreskin of your heart" did He cruelly command us to kill ourselves? (Ibn Ezra, Shemot 20:1)
Ibn Ezra explains that we must explain the verse, "And you shall circumcise the foreskin of your heart" as a metaphor, because we know God's moral ways and understand that He would never command us to cut our hearts. Our world of values serves here as an exegetical consideration in the understanding of God's word.
One final example of moral values serving as an exegetical tool to help us understand God's will may be found in the words of Rav Chayyim of Volozhin, father of the Lithuanian yeshiva world, regarding allowances given to agunot to remarry:
I see that regarding most things we are headed in the same direction. It is just that he inclines toward stringency, since the matter is not cast upon him. Just like him, I too did not turn to the allowances that emerge from study before the burden of decision-making was placed upon my shoulders. Now, however, as a result of our many sins, our environs have been orphaned of its sages, and the yoke of ruling for the entire area was placed on my shoulders And I calculated with my Maker, and I saw it a personal obligation to gather all my strength in order to persevere in finding a remedy for the agunot. (Reb Chayim of Volozhin, Responsa Chut ha-Meshulash, I, no. 8)
Rav Chayim of Volozhin admits that according to "dry," legal considerations, the unfortunate aguna should be forbidden to remarry; due to moral considerations, however, he inclines toward leniency. Rav Chayyim genuinely believes that this is truly God's will in this situation. Compassion for the widow leads him to search for a valid halakhic allowance, and serves as a consideration in understanding God's will.
It is not always possible, however to find halakhic exegesis that accords with the moral world of values that we attribute to God. The moral consideration is not the sole consideration; it is sometimes set aside by other considerations.
Let us bring one more example of a Divine command that gives rise to a moral problem, which cannot be circumvented.
When the Holy One, blessed be He, told Sha'ul to "Go and smite Amalek," he said: Now, if for a single soul the Torah said to perform the rite of egla arufa, surely this is so for all these souls. And if man sinned, how did the cattle sin?; and if the adults sinned, how did the children sin? A heavenly voice issued forth and said to him: "Be not overly righteous." (Yoma 22b)
We shall not always or perhaps almost never succeed entirely in resolving the moral difficulties arising in Halakha. But we are duty bound to walk in the paths of the Sages of Israel, and, at the very least, strive to minimize as much as possible the clash between Halakha and morality.
 See, however, the words of Ha-Admor of Pistchena: "Now the nations of the world, even the best of them, think that truth exists independently, and that God commanded the truth because in and of itself it is true This is in contrast with Israel, who say: You are the God of truth; He, may He be blessed, is truth, and there is no truth outside of Him. All the truth in the world is [true] only because so God commanded and willed. Since He, may He be blessed, is truth, therefore, this too is truth. One is forbidden to steal because the God of truth so commanded. Because of the command of the true God, this is true as well. But when God commands the opposite that property declared by a court to be ownerless is ownerless then that becomes the truth, that this person's property is ownerless. And when God commanded our father, Avraham, to bind up his son Yitzchak [as an offering], then it was the truth to bind him. Had He not said to him afterwards, "Do nothing to him," it would have been the truth to slaughter him. (Ha-Admor of Pistchena, Eish Kodesh, p. 68)
 As for Moshe and Sichon, one might argue that we are merely dealing here with a tactical maneuver for the purpose of public relations, for it was clear that Sichon would not agree to peace. Chazal, however, seem to imply otherwise: "Whatever Moshe decreed, the Holy One, blessed be He, approved. How so? The Holy One, blessed be He, did not tell [Moshe] to break the tablets. Yet Moshe went and broke them on his own. From where do we know that the Holy One, blessed be He, approved? For it says: 'Which (asher) you broke' be thanked (yishar) for having broken them. The Holy One, blessed be He, told him to wage war against Sichon, as it says: 'And contend with him in battle.' But he did not do so. Rather, 'And I sent messengers, etc.' The Holy One, blessed be He, said to him: I told you to wage war against him, but you opened with peace. On your life, I shall fulfill your decree: Any war that [Israel] wages, they must open with peace, as it says: 'When you come near to a city, etc.'" (Devarim Rabba 5:13). The implication is that it turned out that Moshe understood God's deeper intention regarding the conduct of war in general. Similarly, we find in another source: "'Her ways are ways of pleasantness, and all her paths are peace.' Whatever is written in the Torah was written for the sake of peace. Even though the Torah speaks of wars, even wars were written about for the sake of peace. You find that the Holy One, blessed be He, annulled His decree for the sake of peace. When? When the Holy One, blessed be He, said to Moshe: 'When you shall besiege a city a long time,' and the entire passage, the Holy One, blessed be He, said to destroy them, as it says: 'You shall utterly destroy them.' But Moshe did not do that, but rather he said: Shall I go now and smite he who sinned together with he who did not sin?! Rather, I shall approach them with peace, as it says: 'And I sent messengers out of the wilderness of Kedemot to Sichon king of Cheshbon with words of peace, saying, Let me pass through your land.' When he saw that [Sichon] was not coming in peace, he smote him The Holy One, blessed be He, said: I said: 'You shall utterly destroy them,' but you did not do so. On your life, as you said, I shall do, as it says: 'When you come near to a city to fight against it, proclaim peace to it'" (Tanchuma Tzav, 3).
(Translated by David Strauss)