Monday, November 21, 2011

Morality and Halacha

In the opening post, I argued that legal and sociological decisions in the Jewish world are often debated on the wrong terms.  Specifically, I noted that the substantive moral element in a debate is often ignored, in favor of more procedural types of arguments.  To give a concrete example of this relatively abstract idea, I chose the recent controversy surrounding the blessing, "שלא עשני אשה".  Rather than a full blown discussion about what the blessing means, and whether it's seeming praise of male superiority is morally correct (if that is indeed what the blessing is saying), many argued that it cannot be eliminated because of tradition, because of the consensus of poskim (rabbinic decisors), or for other sociological reasons.  These may or may not have moral weight, I argued, but the argument should be on the merits.  Does the moral weight of adhering to tradition in such a case outweigh the moral wrong committed by a proclamation of women's inferiority?

The comments of one particular individual have caused me to realize that I need to take a big step backward.  I had made several assumptions, chief among them the assumption that halacha was in some way concerned with/related to morality.  Further, I had assumed as both an empirical (how it is) and theoretical (how it should be) matter that most Orthodox Jews are concerned with acting in a morally correct way.

Many, however, have long held that halacha is and should be independent of outside morality.  Rav Solovetichik often described a halachic system that operated with its own independent rules.  For example, his staunch opposition to Rabbi Emmanuel Rackman's Beit Din was based largely on his view of a halachic system that operated independent of reality (I will describe this more in its own post if you're unfamiliar with the incident).  Further, the great Israeli scholar Yeshayahu Leibowitz (see here) frequently and vociferously argued for a Jewish law divorced from morality.  There was a certain fear that modern values are temporary, and the mere product of feeble human contemplation.  Are we so arrogant as to give religious significance to the contemporary morals and values we believe in?  Further, the halachic system was often viewed as completely divine, and so the insertion of modern values into a halachic debate would represent modern man claiming he knows better than God himself.

While there is certainly value in caution, and we should not be too hasty in our approach to halacha, I believe that the approach outlined above is both dangerous and incorrect.
The whole purpose of this blog is to discuss the relevance of Orthodox Judaism in the modern world.  Divorcing the halacha from morality leads to a huge problem.  If halacha does not coincide with morality, then why follow the halachic system.  Many people would rather be moral than halachic, and understandably so, if the two can be pitted against each other.

Moreover, one cannot hide behind the divinity of the halachic system.  It is not right to assert that halacha defines morality, and what the halacha says is by definition the morally correct path, simply because it is the word of God.  While the commandments are from God, many of the most controversial issues in the modern day concern Rabbinic enactments, the pure product of the human mind.  Further, many more modern controversies concern custom, the product of communal action over the years.  While we have been blessed with enlightened Rabbis and holy communities, they have certainly not been immune to the prejudices and biases of the past.  Humanity has progressed in many areas, and we have often led the charge or jumped right on board.  Judaism realized the value of monogamy, even though it was customarily permitted.  Judaism realized the evils of slavery and human ownership, no matter how kind the master was to his slaves, so slavery was strictly forbidden.  Judaism realized that women are not intellectually inferior to men (as it once believed), and so we now permit women to engage in the study of Torah.  Lastly, many of the actual commandments in the Torah seem to codify ancient values and norms, but this doesn't necessarily mean that they've been endorsed.  Just because the Torah orders people to engage in animal sacrifices doesn't necessarily mean that God is endorsing this method of service.  In fact, the Rambam argues that people had been used to this type of religious worship, and to provide for some other kind of worship would have been too dramatic for the early Israelites; therefore, a foolish ritual was given divine sanction.

I have argued that it is wrong to divorce Torah and morality.  In the next post, I will expound upon the views of Rabbi Eliezer Berkovitz, the great 20th century thinker, and elaborate on why Halacha and morality are and should continue to be intertwined.  


  1. Two things:

    1. I'd absolutely like to know more about this Solovetichik "amorality" (my [sardonic] word, here), and the binary with Rackman, as you mentioned, when you get the chance to go more into that.

    2. As much as I can infer the stance you're assuming, I'd like to know some prescriptive insights or resolutions you might offer. While you encourage an openness, in this post, its still too intangible! I'd like to know a little bit more about your specific opinions in this very broad and important issue!

    Thanks for the great post!

  2. Thanks for the comment. Definitely going to get to all of those things, although I'm not sure I have all of the answers. In the next post, I'll definitely over some of my own opinions/resolutions about Jewish law and morality. I will say now, though, that I believe Jewish law to be an outgrowth of or attempted codification of certain moral principles, and that the legal code must be able to adapt in some way as major moral changes take place! Thanks for the insightful comment :-)

  3. Thanks for another thoughtful post.It seems that the underlying assumption of your thinking on this subject is that devine will coincides with human judgements regarding justice and goodness. Such a view involves, I think, a radical anthropromorphism . This does not of course mean that it is wrong. But it seems to me that it is contrary to the line of thought reflected in for example the book of job, or the morah nevukim, and as job argued to his friends seems contrary to human experience.Thanks again. Peter Berman.

  4. Legal and sociological decisions in the Jewish world often debated on the wrong terms? Morality can be A) subjective as when it refers to an existing code of conduct put forward by a society or B) normative (when it) refers to a code of conduct that given specified conditions would be put forward by all rational persons.
    Putting aside for a moment the question of rationality itself being subjective in our topsy-turvy world; It appear to me that you are “preaching to the choir” when you argue that there can be daylight between morality and Halacha. Many Jews in the “normative” camp who might seriously entertain this option are beyond the need for persuasion and are ready for specific guidance in how to begin to reconcile this idea with that of the Mesorah and the concept of Torah-lemoshe-Mi-Sinai.
    Those in the “subjective” camp will not be interested in exploring the idea of whether morality must ultimately be subsumed to Halacha; Halacha is a product of humans who are divinely inspired and since the divine is irrefutable contradictions must only come from human misinterpretation of the divine will. This is a circular argument to be sure, but one that is nevertheless perceived as valid in a closed system.

  5. Perhaps the gap between "morality" and "amorality" in halacha can be bridged through the mitzvah of "veasita hayashar vehatov", which according to many opinions is a mitzvah within the "amoral" system which commands us to be moral.

  6. I agree. I think that there is a general halachic imperative to do the right thing. A similar imperative might be found in the exhortation of קדושים תהיו according to the Ramban's interpretation. It seems that these mitzvot suggest/require an independent moral compass and system.
    The only problem with this bridging is that it only works when there's no real conflict. If the halacha and morality stand in contradiction in some way, it becomes more difficult. Could "veasita hayashar vehatov" theoretically cause us to willingly violate a rabbinic command? Reinterpret a dive command?

  7. Shalom Barry,

    Would you kindly explain this text from Talmud:

    "When a grown-up man has intercourse with a little girl it is nothing, for when the girl is less than this (three years and a day) it is as if one put the finger into the eye." The footnote says that as “tears come to the eye again and again, so does virginity come back to the little girl under three years.” Kethuboth 11b.