Shiur #42: Pursuit of the Ethical Life (13) Living with Tzedaka U-mishpat Part I: Devar Ha-reshut
As a culmination to this unit on the berit Avot values of tzedaka u-mishpat, the next few shiurim will explore various implications of these values for contemporary Jewish life. Throughout, our contention has been that there is room and need for the employment of a carefully nurtured moral intuition in navigating situations in which Jewish law does not establish absolute obligations. The berit Avot charge to pursue tzedaka u-mishpat is one, though not the only, source of ethical duty, and their common endorsement of ethics beyond Halakha is more important than any of the subtle distinctions between them.
From demonstrating the place of moral intuition generally, and tzedaka u-mishpat specifically, within Torah She-bikhtav and Torah She-be’al Peh, we transition now to asking where and how they might contribute to our own collective and individual lives.
The following shiurim will address the relevance of moral intuition beyond the calling of Halakha, as well as the role of moral intuition within Halakha and in dialogue with it; finally, we will try to illustrate some of the principles developed. Central to our discussion throughout will be several overlapping articles and published addresses by mori ve-rabbi HaRav Aharon Lichtenstein, for whom Jewish ethics inside and outside of Halakha were a cornerstone of his thinking.
Of course, we want to know not only about moral intuition, but about berit Avot in particular. If berit Avot has not been superseded by later covenants, then it should be obviously relevant; its ethical force should clearly add something to Jewish responsibility and experience that are not otherwise captured. Moreover, if we encounter appeals to Avraham and his legacy, we want to ask: What do they add to this picture? What does his covenant uniquely offer that other sources of Jewish moral intuition do not?
Moral intuition is most obviously relevant in areas and situations that constitute devar ha-reshut (optional matters) — where no concrete legal obligations obtain. As HaRav Lichtenstein observes, just because an issue is labeled as reshut does not mean that it is not morally and spiritually laden. For example, emancipation of a Canaanite slave; a priest’s participation in his relative’s burial; issuance of a formal warning to one’s wife not to seclude herself with another man (Sota 3a); and warfare (Sota 44b) are all listed as actions that might be, in at least some circumstances, reshut. But could we imagine, HaRav Lichtenstein wonders, that a decision to declare war or to publicly suspect one’s wife of contemplating infidelity is either completely arbitrary or, at most, merely practical? (“Halakha Ve-halakhim,” 41-45; “Communal Governance,” 66)
The suggestion is not only implausible but false. The berit Avot mandate to consistently pursue tzedaka u-mishpat, along with complementary Sinaitic commands, such as to perform ha-yashar ve-hatov and to imitate God’s attributes (see, for instance, Rambam, Hilkhot De’ot, 1:5-6), ask that we calibrate a morally sensitive response to every situation, even when the law is neutral.
HaRav Lichtenstein also cautions against another logical fallacy: that the law’s silence about a particular phenomenon, or even its provision of a legal mechanism to facilitate the phenomenon’s achievement, should be translated into active endorsement:
Our unflinching commitment to Torah and its values need not entail assent to the proposition that its charge is, in every area and in every respect, maximal. Our firm faith in “Torat Hashem temimah” [God’s Torah is perfect] (Tehillim 19:8) need not assume that, at the formal normative plane, temimut has always been demanded of us, across the board. (“Human and Social Factor,” 179)
Logically, one could raise the following question: God knows how to outlaw that which is repulsive to Him; if He gives leeway, who are we to cast our own judgment? However, HaRav Lichtenstein notes, this challenge applies just as much to our Sages throughout history, who liberally discouraged or prohibited behavior that the Torah did not, as it does to the contemplative individual.
For example, HaRav Lichtenstein asks, how should we relate to rabbinic restrictions upon halakhic institutions of marriage, such as betrothal of a minor or polygamy? One option is to propose that “historical circumstances had, in a given instance, indeed changed,” such that what was appropriate for one era is not for another. Alternatively,
It might be contended that while a given procedure, for reasons we can only conjecture, had been enabled by the Torah, it had ab initio never been truly sanctioned, morally, but only permitted, if not quite at the level of “The Torah but related to man’s evil inclination” (Kiddushin 21b), then in a similar vein. From this perspective, the takkanah [enactment] would constitute spiritual progress, as a collective “Sanctify yourself with what is permitted to you” (Yevamot 20a). (“Human and Social Factor,” 177-178)
The possibility that, in the course of halakhic history, the moral bar might be raised, cannot, a priori, be precluded. (179) 
HaRav Lichtenstein, then, embraces the possibility that spiritual or moral sensibility might encourage retreat from certain institutions or practices, whether communal or private. Yet again, we face the question: what can inspire such activism, which by definition must emanate from outside the law’s formal requirements? The answer will be the various sources in berit Avot and berit Sinai that push us to continually strive higher in both the ethical and spiritual domains.
Sources of Moral Intuition
Collectively, the diverse sources of broad moral aspiration we have encountered impose a sweeping responsibility on all walks of life. Each one, though, contributes a slightly different flavor, as we partially explored in Shiur #34 and continue here.
Pursuit of ha-yashar ve-hatov, I would suggest, pertains mostly to navigating private, interpersonal relations, ranging from situations of inherent tension or conflict to proper etiquette in everyday affairs. It calls upon us to handle every situation or interaction with sensitivity, sensibility, and good judgment. Thus, the Ramban subsumes under ha-yashar ve-hatov everything from arbitration between litigants and respecting the rights of different prospective buyers to “even what [the Sages] said… he speaks with all people pleasantly — until he is regarded as perfect and right in all matters” (Commentary on Devarim 6:18). Ha-yashar ve-hatov may be less relevant, though, when it comes to determining a priori goals and aspirations.
The thrust of imitatio Dei (imitation of God), on the other hand, is towards a virtue ethic, at least as the Rambam describes this commandment in Mishneh Torah. According to R. Walter Wurzburger, “the cultivation of virtues,” according to the Rambam, “is not simply mandated as a means toward moral action, but constitutes an end in itself.” Primarily, then, imitatio Dei does not provide a guidepost for managing conflict, for instance, but an obligation to develop and refine one’s character in ways that will reflexively respond to circumstances virtuously. The goal is self-development for its own sake, so that one’s moral personality or modes of behavior approach that of God. Virtuous conduct is an expected outcome, but the guidance towards such will only be indirect at best.
Tzedaka u-mishpat, I think, set a more ambitious agenda. They don’t (only) answer the question, “How should I conduct myself right now?” but also other questions: “What is our ethical mandate generally?” “What should my/ our priorities be, individually and collectively?” “What sensitivities should inform and accompany any moral reflection that I engage in?”
Primarily, tzedaka u-mishpat define a national purpose and aspiration. As such, though, they allow each Jew to ask himself or herself, in any given situation, how closely different choices accord with that overall vision.
What Would Avraham Do?
Moreover, it allows us to assess a situation against the models of a particular historical character and others who embodied his ideals. If Chazal enjoin us to ask ourselves if a given decision or attitude is laced with middat Sedom, in the positive, I would suggest that a Jew faced with a dilemma consider the question, “What would Avraham do?” And while our actual historical data by which to answer are limited, I still believe that the exercise could provide inspiration, or at least a check, in many contemporary circumstances in which the lack of such a benchmark is sorely felt.
To cite just one example, in an essay about priorities in philanthropy, HaRav Lichtenstein bemoans the fact that “many in the Torah world persist in remaining oblivious to hesed’s universal aspect” (“Jewish Philanthropy,” 100). He continues:
Whatever the causal nexus, we ask ourselves, in disbelief: Are the midrashim, imbibed from childhood, recounting Avraham Avinu’s gemilut hasadim — including the well-worn homily that his hospitality was superior to Lot’s inasmuch as he thought that his noontime guests were dusty nomads, while his nephew knew they were angelic — of no practical moment? Was the test of Rivkah’s sensitivity futile, as it involved no Jews? Are we to regard Mosheh Rabbenu’s bold defense of a group of Midianite lasses merely a chivalrous gesture by an aspiring shepherd? (102)
Characteristically, HaRav Lichtenstein considers counterarguments:
There are, of course, rationalizing rejoinders. It may be contended, for instance, that whatever preceded mattan Torah doesn’t count, as the normative thrust of Sinai reoriented priorities.
In other words, one can dismiss both natural morality and berit Avot as sources of obligation.
In response, HaRav Lichtenstein appeals to the berit Sinai commandment of imitatio Dei, which, according to the Rambam (Hilkhot Melakhim 10:12), specifically includes compassion and kindness to all creatures. Furthermore, HaRav Lichtenstein constructs a halakhic argument that Jewish obligation post-Sinai cannot fall below the Noahide standard, so that universal philanthropic responsibility should fundamentally persist (102-106).
Nevertheless, the force of his earlier citations of pre-Sinaitic Biblical giants persists. Thus, HaRav Lichtenstein suggests, a sweeping concern for human welfare might not only be something that we inherit from our Noahide ancestors, but something that derives from
our specifically Jewish identity, as a linchpin of the legacy of the patriarchal fountainhead of Knesset Yisrael, in general, and of its ethic, in particular; of Avraham, whose progeny and disciples are devoted to the realization of “And they shall keep the way of the Lord, to do zedakah and judgment” (Bereishit 18:19). (103)
In other words, sensitivity to universal human need and suffering is a paradigmatic expression of berit Avot.
Furthermore, what berit Avot adds to Sinaitic obligation permeates, I think, HaRav Lichtenstein’s earlier mix of incredulity and scorn. The verse of “You shall do ha-yashar ve-hatov” and the Ramban’s enthralling commentary upon it belong to a sophisticated school lesson, as do the concepts of Divine attributes and imitation of them. The story of Avraham’s generosity, on the other hand, has been taken in by Jewish babes along with their mothers’ milk ever since he called out to those three strangers in the desert. Avraham’s legacy is simply more basic — chronologically, both in the arc of our national story and in the identity formation of each individual Jew, and axiologically, in terms of its centrality to Jewish consciousness and purpose. It is the bedrock upon which all subsequent developments in Jewish tradition rest.
Avraham’s ethical legacy lies so deep within Jewish consciousness, in fact, that sometimes its echo is barely heard through all that berit Sinai has piled on top. We check our decisions against the Mishna and the Talmud, against the Rambam and the Shulchan Arukh, against the Mishna Berura and the Arukh Ha-shulchan, but we sometimes overlook earlier sources, such as Sefer Yeshayahu and Parashat Vayera!
This is true in the realm of tzedaka, but it can also be true in the realm of mishpat, as well as at the point of intersection between them. Our attitudes towards social and racial inequities, for instance, ought to be formulated not only out of the sources of Halakha, but also by the values of berit Avot. As children of Avraham, we lean towards fairness and equality even when the law does not insist upon it, and we approach any discussion from a posture of compassion, kindness, and self-consciousness. Berit Avot does not impose specific duties; its only absolute demand is that we continually hear its calling and feel its pulsating spirit and utterly reject any stance that seems deaf to its concerns. Bigotry, smugness, social apathy, and indifference to hardship and suffering have no place in our midst. Similarly, when weighing the exploitation of a loophole, or the use of a borderline business practice, or the leverage of privilege, we need to answer to our forefathers and our prophets just as much as to Divine law.
When probing our communal and personal ethical responsibilities, I submit that we have not finished until we have challenged ourselves to wonder: What would Avraham do?
For Further Thought:
- In a recent essay, R. Asher Weiss rules that the duty to prevent harm (see Rambam, Hilkhot Rotze’ach U-shmirat Ha-nefesh 11:4) obligates parents to vaccinate their children. But what about individual parents who decline to vaccinate their families, as herd immunity will be achieved by vaccination of the rest? As the children will not be in functional danger, why should they nonetheless have to?
R. Weiss offers two counterarguments. The second draws from the laws of communal partnership (Bava Batra 8a; Shulchan Arukh, CM 163) which dictate that when everyone is equally responsible for contributing to public safety measures, no one individual may exempt himself or herself and rely upon the efforts of the rest.
The first quotes not from halakhic sources but from rabbinic stories about the Sodomites and the Generation of the Flood. According to the Sages, in both societies, the people would steal insubstantial amounts that were beneath the threshold for legal recourse (Sanhedrin 109b; Yerushalmi, Bava Metzia 4:2; Bereishit Rabba 31:5) but which would collectively leave the victim with nothing (Rashi).
R. Weiss concludes:
From [the Sages’] holy words we learn a simple principle regarding the rules of fairness (mishpat ha-tzedek), that any matter that for the masses would be unethical is forbidden even for the individual to do.
In other words, R. Weiss constructs a decisive ethical argument, equivalent to Immanuel Kant’s Categorical Imperative (“Act only according to that maxim whereby you can, at the same time, will that it should become a universal law”), out of the stories of Sedom!
R. Weiss is aware that the cases are not exactly equivalent: theft of even a miniscule amount is objectively forbidden, even if the courts cannot extract payment (see Rambam, Hilkhot Gezeila Ve-aveida 1:6, Hilkhot Melakhim 9:9), while abstention from vaccination is not. “However,” he continues,
according to my humble opinion, it seems more reasonable not to distinguish [between them] at all, for at their core, they are similar, as is apparent to anyone with insight and common sense.
In other words, R. Weiss implores us to recognize the deeper moral problem with the Sodomites’ behavior and not get stuck on its legal technicalities. “Anyone with insight and common sense” should learn from them that treating oneself as exceptional, without other extenuating factors, is wrong. This too, then, becomes a moral principle of Judaism.
Questions or Comments?
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 “The Human and Social Factor in Halakhah,” Leaves of Faith, Vol. 1, 159-188; “Communal Governance, Lay and Rabbinic: An Overview” and “Jewish Philanthropy — Whither?,” Varieties of Jewish Experience, 63-128; “Halakha Ve-halakhim Ke-oshiyut Mussar: Hirhurim Machshavtiyyim Ve-chinukhiyyim,” Mussar Aviv, 37-52; “‘Mah Enosh’: Reflections on the Relation between Judaism and Humanism,” The Torah u-Madda Journal, Vol. 14 (2006-2007), 1-61; and By His Light, chapter 6, available here.
 Italics in the original.
 Ethics of Responsibility: Pluralistic Approaches to Covenantal Ethics, 69. See his full discussion there, pp. 69-79, as well as his “The Centrality of Virtue-Ethics in Maimonides” and “Imitatio Dei in Maimonides’s Sefer Ha-Mitzvot and the Mishneh Torah,” Covenantal Imperatives: Essays by Walter S. Wurzburger on Jewish Law, Thought, and Community, 91-104.
 Admittedly, imitatio Dei appears in different forms in the works of Chazal, based on multiple different verses. In his assessment, R. Wurzburger relies on the Rambam’s formulation in Mishneh Torah (Hilkhot De’ot 1:5-7, based on Devarim 28:9), which parallels the focus in Shabbat 133b (based on Shemot 15:2) and the Sifrei (Devarim 11:22) on traits. This contrasts with the emphasis in Sota 14a (based on Devarim 13:5) on benevolent actions, which the Rambam quotes in Sefer Ha-mitzvot (Positive Commandment #8(. Also see Midrash Tanchuma, Vayishlach, 10; and Vayikra Rabba 25:3.