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

Lecture #3b: Halakha and Morality

C. IMMORAL MITZVOT?

The problem of Halakha and morality arises in its most acute form with regard to mitzvot that clearly contradict our moral standards. Our starting point must be that when a mitzva clearly contradicts our moral principles, we must, without a doubt, follow the mitzva. Proof may be adduced from the story of the Akeida.  The very same Avraham who expected that God conduct Himself in a moral manner (with regard to the destruction of Sedom) was himself prepared to execute an absolutely immoral Divine command (to sacrfice his son) without any protest or hesitation. Our duty to God supersedes 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 offer peace to 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 were 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 He said, God 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, first of all, we must send Sichon words of peace, and only afterwards, if there is no other alternative, we must go out in battle against him.[1] In such a 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.

This principle is found 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.

Mishna: The place of stoning [i.e., the platform off of which the criminal sentenced to death is to be pushed, after which his body will be stoned] is twice the height of a man…

Gemara: [A Tanna] taught: "Including his height, it is three times the height of a man." 
Why do we need it to be so high?  A contradiction was raised: "Just as a pit that can kill [is] ten handbreadths, so, too, all that can kill [are] ten handbreadths." [So let the platform be lower!] 
Rav Nachman said in the name of Rabbah bar Avuha: The verse says: "Love your neighbor as yourself" – select for him a humane death. If so, let us raise it more! Because he would become mutilated.  (Sanhedrin 45a)

 The Gemara asks: why are those who are sentenced to stoning cast down from such a great height? Surely a drop of ten handbreaths is enough to kill them! The Gemara answers that we want them to die immediately without suffering. If so, why then do we not throw them off the Empire State Building? So that their bodies not become mutilated. Moral and ethical considerations are treated here as exegetical tools to further our understanding of the will of God with regard to punishments.

We find another example in Rav Baruch Epstein's interpretation of the famous law regarding "an eye for an eye":

"An eye for ['tachat'] an eye …" (Shemot 21:24).  Even though it is possible to explain the word "tachat" in its literal sense, Chazal decided to support the tradition that the verse refer here to monetary compensation. For it may be said that 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 "tachat" as refering to money, for the injured party will at least receive monetary compensation for the loss of his eye.  (Torah Temima, ad loc., no. 171)

A third example is found in the commentary of Ibn Ezra, where he explains why it is clear that the command, "And you shall circumcise the foreskin of your heart," is merely a metaphor:

… And the second kind are the mitzvot with hidden rationales, regarding which it was not stated explicitly why they were commanded. 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. 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, to determine if it is to be understood metaphorically. If we do not find this in writing, we should seek it ourselves and search for it to the best of our abilities, and perhaps we can fix it. 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 "You shall circumcise the foreskin of your heart" – did He cruelly command us to kill ourselves? (Ibn Ezra, Shemot 20:1)

We see one final example of moral values serving as exegetical tools to help us understand God's will in the words of Reb Chayyim of Volozhin, the father of the Lithuanian yeshiva world, regarding permission given to agunot to remarry:

I see that regarding most things we are headed in the same direction. It is just that you incline toward stringency, since the matter is not cast upon you. Just like you, 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.  (Responsa Chut Ha-meshulash I:8)

 Reb Chayyim 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. There is no perversion here or circumvention of God's will, but rather a genuine belief that moral considerations are also a factor when we come to understand God's will.

We may be able to find an additional example, concealed and hidden, regarding a sensitive and problematic issue.  The Talmudic sage Daniel Hayyata expounded upon the problem of mamzerim as follows:

"So I returned, and considered all the oppressions that are done under the sun" (Kohelet 4:1). Daniel Chayyata interpreted the verse in reference to mamzerim. "And behold the tears of such as were oppressed" (ibid.) – their fathers violated prohibitions; why should these wretched people care? If this one's father engaged in incest, in what way did the son sin, and why should he care? "But they had no comforter," rather, "on the side of their oppressors there was power" – from the hand of the Great Sanhedrin in Israel, who came to them by the power of the Torah, and sent them away, on account of, "A mamzer shall not enter the community of the Lord." "But they had no comforter" – the Holy One, blessed be He, said: It falls upon me to comfort them, for in this world they contain chaff, but regarding the future Zekhariah said: I saw him comprised entirely of pure gold.  (Vayikra Rabba 32:8)

We have here a daring and revolutionary moral critique of the laws pertaining to mamzerim. It seems that it is impossible to sever this moral outlook from various revolutionary and unprecedented elements found in the laws of mamzerim.

Our Sages have taught: In the future mamzerim and netinim will be pure; these are the words of Rabbi Yose. (Kiddushin 72b)

What is meant by: "That they may offer to the Lord an offering in righteousness"? Rabbi Yitzhak said: The Holy One, blessed be He, acted charitably with Israel, for a family that became assimilated has become assimilated.  (Kiddushin 71a)

The law that "a family that has become assimilated is assimilated" – that is to say, if a family of mamzerim became mixed up in Israel, its legitimacy may not be contested – is unprecedented in Halakha. No one would think to say that "a pig which has become assimilated is assimilated." It seems that we can identify here the considerations that, as we saw above, were stated elsewhere explicitly. Moral considerations brought Chazal to try and minimize the scope of the prohibitions pertaining to mamzerim as much as possible. On the other hand, we also see here that the utilization of moral considerations as an exegetical tool is not unlimited and all-powerful. Chazal did not nullify the laws of mamzerim that are mentioned explicitly in the Torah; they could only limit them.

I shall now bring yet another example of a Divine command which raises a moral problem that 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 [when innocent blood is shed], 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. 

(Translated by Rav David Strauss)

FOOTNOTE:

[1] 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 Heshbon 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'" (Tanhuma Tzav, 3).

(Translated by Rav David Strauss)