YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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PHILOSOPHY OF HALAKHA
By Rav Chaim Navon

Lecture #3a: Halakha and Morality

DOES RELIGION RECOGNIZE THE EXISTENCE OF MORALITY?

The question concerning the relationship between Halakha and morality is a difficult one. The classic starting point for all discussion regarding this question remains Plato's Dialogue, "Euthyphro:"

Socrates: Consider this question: Is what is pious loved by the gods because it is pious, or is it pious because it is loved?
Euthyphro: I don't understand what you mean, Socrates.
Socrates: Well, I will try to explain more clearly.
(…)  
Socrates: Is not piety, according to your definition, loved by all the gods?
Euthyphro: Yes.
Socrates: Just because it is pious, or for some other reason? 
Euthyphro: No, because it is pious.
Socrates: So it is loved because it is pious, not pious because it is loved?

Plato raises here a fundamental question: Does a religious world-view leave room for morality and goodness as independent standards by which to judge an action? 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.

This question 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 essentially that would mean that God is subordinate to something outside of Him. On the other hand, it is no less difficult to assert that a system of good and evil does not exist, or that God charges us with arbitrary commands. 

Both approaches find expression in Christianity and Islam. It is difficult, however, to point to a Jewish source that adopts the second approach. I have not found a single Jewish thinker who argues that good and evil have no existence apart from 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: 

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. 
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 justice?" 
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. Furthermore, he assumes that God's moral criteria are understandable to man. It would have been possible to say 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 justice?" God accepts Avraham's 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. MITZVOT AND MORALITY

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, and he applies this position to the realm of mitzvot as well. Rambam argues that God's commandments are not arbitrary, but rather stem from reasoned moral rationales:

There is a group of human beings who consider it a grievous thing that reasons should be given for any law; it would please them most if the intellect would not find a meaning for the commandments and prohibitions. What compels them to feel thus is a sickness that they find in their souls, a sickness to which they are unable to give utterance and of which they cannot furnish a satisfactory account. For they think that if those laws were useful in this existence and had been given to us for this or that reason, it would be as if they derived from the reflection and the understanding of some intelligent being. If, however, there is a thing for which the intellect could not find any meaning at all and that does not lead to something useful, it undoubtedly derives from God; for the reflection of man would not lead to such a thing. It is as if, according to these people of weak intellects, man were more perfect than his Maker; for man speaks and acts in a manner that leads to some intended end, whereas the deity does not act thus, but rather commands us to do things that are not useful to us and forbids us to do things that are not harmful to us. 
However, [in truth,] He is far exalted above this; the contrary is the case … as we have explained on the basis of the Torah's dictum: "For our good always, that He might preserve us alive, as it is this day" (Devarim 6:24). And it says: "Which shall hear all these statutes [chukkim] and say: Surely this great community is a wise and understanding people" (Devarim 4:6). Thus it states explicitly that even all the statutes [chukkim, understood as mitzvot which seem to have no rational reason] will show to all the nations that [all] the mitzvot have been given with wisdom and understanding.  Now, if there is a thing for which no reason is known and that does not either procure something useful or ward off something harmful, why should one say of one who believes in it or practices it that he is "wise and understanding" and of great worth? And why should the religious communities think it a wonder? 
Rather, things are indubitably as we have mentioned: every commandment from among these six hundred and thirteen commandments exists either with a view to communicating a correct opinion, or to putting an end to an unhealthy opinion, or to communicating a rule of justice, or to warding off an injustice, or to endowing men with a noble moral quality, or to warning them against an evil moral quality.  (Guide of the Perplexed III:31)

Thus far, I 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, in practice, there is agreement between Halakha and the standards of human morality.

B. MITZVOT THAT APPEAR TO BE UNSATISFACTORY FROM A MORAL PERSPECTIVE

There are many mitzvot which easily can be 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 that which morality demands but Halakha does not formally codify. How are we to relate to moral values and imperatives that find no expression in the halakhic system? 

My revered teacher, Rav Yehuda Amital, often cites the Responsa Dor Revi'i – written by 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:

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 forbidden only 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?  [Is this to be preferred over] eating meat that the Torah [explicitly] forbids with a negative commandment? 
[Certainly, one should choose to eat non-kosher meat over consuming human flesh.]  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? … 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)

What happens when someone finds himself alone in the desert, and all that is available is horsemeat and human flesh? What should he eat? From a halakhic perspective, the prohibition of eating human flesh is surely the less severe one. From an emotional perspective, and, perhaps, from a moral one as well, cannibalism seems far more abhorrent to us. The auhor of Dor Revi'i argues that one should eat the horsemeat. 

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 (which is explicitly prohibited in the Torah), but he is permitted to go about in public stark naked (which is not mentioned in the Torah)? The author of 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 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 Noah) are derived from Scripture, as it is written, "And the Lord God commanded" – they are not merely received commandments, for the obligations 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 have no expression in Halakha. 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 live up to our moral standards.

Chazal already confronted this issue with respect to the law regarding a non-Jewish female prisoner of war (yefat toar, Devarim 21:9-14). The Jewish soldier is allowed to take her as a wife, but only after allowing her to mourn, and he may not sell her as a slave.  Chazal assert that the mitzva has a moral objective. God would prefer that she not be taken at all. 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 captive 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.

We shall continue next week with an examination of this problem in its most acute form: mitzvot that clearly seem to contradict our moral standards. 

(Translated by Rav David Strauss)