Justice and Righteousness (1)

 

HALAKHA AS MORAL LAW

 

In this lecture, we shall investigate the degree to which it is possible to identify elements of "righteousness" within Jewish law, that is, moral principles that generally find their place outside the legal arena. In general, legal systems express the smallest number of rules that are necessary for the orderly existence of society, making no attempt to impose moral values. Jewish law does not recognize such a distinction.  The primary reason for this is that Jewish law does not distinguish between mitzvot pertaining to the relationship between man and his fellow and mitzvot pertaining to the relationship between man and God.

 

Civil legal systems tend to focus on the establishment of basic rules of reasonable and decent conduct that will allow for orderly social coexistence. Jewish law, on the other hand, has a different purpose, as well as a different source of authority. Jewish law has the exalted aim of perfecting man and his world, and its authority derives from a Supreme source – the absolute commands of God. These two factors shape Halakha into a legal system that does not turn its eyes away from questions that are clearly moral in nature.

 

An example may be brought from one of the most basic and fundamental imperatives found in Jewish law:

 

You shall love your neighbor as yourself; I am the Lord. (Vayikra 19:18)

 

How is possible to command "love"? Are we merely dealing here with a practical arrangement of minimal norms – or with a lofty moral command? Attention should also be paid to the rationale: "I am the Lord." The intrusion of moral imperatives into the law is justified by the fact that we are dealing here with religious law that rests upon the infinite authority of the Divine Lawmaker.

 

Another example:

 

You shall rise up before the hoary head, and honor the face of the elderly. (Vayikra 19:32)

 

Once again, we are dealing with a law that essentially gives expression to a moral value. No other legal system contains laws of this nature.

 

>From the beginning of the modern period, civil law has increasingly given up all pretensions of reflecting morality. It contents itself with the prevention of injury to others. Civil law focuses upon rights, not obligations. The law is not intended to educate man and shape his moral conduct, but only to defend the rights of others. This was explicitly stated by those who formulated the French Declaration of the Rights of Man and the Citizen:

 

Liberty consists in the freedom to do everything which injures no one else; hence, the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights.[1]

 

As one American Supreme Court justice put it: "My right to raise my fist must be limited by the proximity of your chin. That, however, is the only limitation."

 

Today, the chasm that divides between Jewish and general law is deepening. In our day when relativism reigns, most people dissociate themselves from arguments in favor of absolute values. The prevailing point of view is that absolute values do not exist, only relative values: I have my truth, and you have yours. Under such circumstances, it is doubly clear that nobody has the authority or the right to force his values upon another person. Laws may only reflect the protection granted to the rights of the individual. The law may make not make demands of a person, for nobody has the right to dictate his values to anyone else; the law may only prevent one person from causing injury to another. This leads to the creation of a legal system based upon rights rather than obligations. This tendency, which has existed for centuries, has greatly grown in strength in our own day. It is for this reason that civil law is comprised almost exclusively of "negative precepts," with very few "positive commandments." Hardly ever is a person told what to do, only what not to do.

 

Many years ago, Israeli Supreme Court Justice Moshe Silberg noted that, in contrast to general law which is based upon rights, Jewish law is grounded on obligations.[2] If this was the case in his time, the gap is far greater in our day. Israeli law has been systematically cleansed of all statutes that are not based on the rights of the individual. Thus, for example, the legal ban on homosexuality was abolished in the early nineties. The law may forbid me to make noise between two and four in the afternoon, because of your right to quiet; it may forbid me to hit you, because of your right to wholeness in body. But try to translate the statutes of Jewish law into this language: is it possible to speak of the "right to be loved," or "the right of the elderly to respect"?

 

Let us examine several additional cases in which halakhot are shaped by moral concepts. One of the foundations of civil law is its generality. Civil law does not relate to specific people or situations, but only to general principles. This is because the law does not dictate moral values, but only standard rules of conduct, social "traffic regulations," as it were. From this it follows that the law ignores many moral problems that are not general in nature, but rather stem from a specific situation faced by a specific individual. In contrast, let us examine the following halakhot:

 

If the man be poor, you shall not sleep with his pledge. You shall surely deliver him the pledge when the sun goes down, that he may sleep in his own garment, and bless you; and it shall be as righteousness to you before the Lord your God … You shall not pervert the judgment of the stranger, or of the fatherless; nor take a widow's garment as a pledge. (Devarim 24:12-17)

 

Civil law could not possibly entertain such statutes. Is it possible to discriminate between the rich and the poor? Between a widow and a married woman? Civil law does not relate to individuals who require more delicate and moral consideration. This it leaves to the discretion of the individual. Halakha, on the other hand, transforms moral gestures into legal obligations.

 

On the level of rabbinic legislation as well, we find many rulings and ordinances whose rationales are moral rather than solidly legal. A classic example is the famous mishna in tractate Gittin:

 

These are the enactments instituted in the interest of peace:

A kohen is called to the Torah first, and then a levi, and then an ordinary yisrael, in the interest of peace.

The food used for eruv chatzerot should be placed in the house where it had been customarily placed, in the interest of peace.

The cistern that is closest to the aqueduct is filled first, in the interest of peace.

Traps for animals, birds, and fish involve theft, in the interest of peace. Rabbi Yose says: They constitute full-fledged theft.

An object found by a deaf person, an idiot, or a minor is forbidden to others as theft, in the interest of peace.  Rabbi Yose says: [If one takes these, it is] full-fledged theft.

When a poor man does the gleaning on the top of the olive tree, what falls down under him is forbidden to others as theft, in the interest of peace. Rabbi Yose says: It is full-fledged theft.

A non-Jewish pauper should not be prevented from gathering leket, shikheha and pe'ah (agricultural remnants in the field), in the interest of peace. (Gittin 5:8)

 

We have here an entire set of laws that give binding force to moral values. Indeed, the moral law reflected here – "the interest of peace" – certainly finds expression in modern civil law, and not only in religious law. Here too, however, Halakha is guided by an additional value that goes beyond the practical concern about the undermining of society's institutions. This is what Rambam writes regarding the definition of "the interest of peace":

 

Our Sages have commanded that even in the case of non-Jews, we visit their sick, and bury their dead along with the dead of Israel, and maintain their poor together with the poor of Israel, in the interest of peace.  Surely, it is stated, "The Lord is good to all, and His mercies are over all His works." And it is stated, "Her ways are ways of pleasantness, and all her paths are peace." (Hilkhot Melakhim 10:12)

 

According to Rambam, the principle of "the interest of peace" which guided Chazal does not merely reflect a fear regarding the ramifications of enmity or a desire to establish a proper social order. Rather, it is a moral-metaphysical principle, which commands us to strive for peace and kindness in the world. Halakha endows the practical applications of this principle with legal force.

 

Thus far, we have spoken about moral principles that Halakha has translated into concrete laws. Of necessity, such a discussion leads us to the realm of the reasons underlying the mitzvot. In the next lecture, we shall discuss those moral principles that Halakha takes into account, without eradicating their moral nature and transforming them into statutes in the full sense of the word.

 

 

(Translated by Rav David Strauss)

 

 

FOOTNOTES

 

[1] The philosopher John Stuart Mill was also of the opinion that law has its limits:

 

The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.  To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else.  Over himself, over his own body and mind, the individual is sovereign. (On Liberty, chap. 1)

 

Compare this, however, with the formulation found in the "Universal Declaration of Human Rights" adopted by the General Assembly of the United Nations in 1948:

 

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

 

Thus, this U.N. declaration recognizes that laws and limitations must also reflect the requirements of morality.

 

[2] M. Silberg, "Law and Morality in Jewish Law" (Hebrew)(Jerusalem, 1952), p. 9. This was also noted more recently by Israeli Supreme Court Justice Haim Cohen, "Between Halakha and Justice" (Hebrew), Machanayim XII (Elul 5755), p. 10.