Shiur #02: Is There an Ethic Beyond Formal Jewish Law?
In the first shiur, we outlined a perceived void with regard to a contemporary statement of Jewish values, and we elaborated the methodological assumptions that will guide this project. Before proceeding further, however, it is worth pausing to assess alternative approaches to both the supposed problem and its possible solution. While in the last shiur we introduced a range of Jewish values (including commitment to peoplehood and connection to the Land of Israel), this shiur will focus on a particular issue that has attracted much attention: Whether there exist ethical duties beyond the calling of formal halakha.
To restate the problem, many find the formal requirements of Jewish law too narrow to account fully for all that we ask and expect of a Jew. We are left with the unsettling feeling that there is more to proper conduct than just the code of halakha, for all of its sweep and comprehensiveness, but we struggle to explain what else there could be outside of the formal law. Regarding the ethical realm, mori ve-rabbi R. Aharon Lichtenstein asserts:
If, however, we equate Halakhah with the din, if we mean that everything can be looked up, every moral dilemma resolved by reference to code or canon, the notion is both palpably naןve and patently false. . . . Which of us has not, at times, been made painfully aware of the ethical paucity of his legal resources? Who has not found that fulfillment of explicit halakhic duty could fall well short of exhausting clearly felt moral responsibility? (“Does Judaism Recognize an Ethic Independent of Halakhah?” Leaves of Faith: The World of Jewish Living, 38-39)
R. Lichtenstein’s intuitive questions pose a problem not only for Jewish practice but for halakha as well. Even if we could point to a complementary system that fills in the ethical gaps for us, would this imply that halakha itself is somehow, Heaven forbid, defective—defying our notion that “God’s Torah is perfect” (Tehillim 19:8)?
Response #1: Formalism
One possible response is to reject the logic behind the question. R. Lichtenstein presupposes that we possess some independent moral barometer outside of halakha that judges the halakha and finds it incomplete. Perhaps this notion is wrong, not for its assessment but for its assumption. In other words, for a Jew, “halakhic” is synonymous with “ethical.” What the halakha proscribes regarding interpersonal relations comprises the scope of unethical behavior; what it sanctions, either overtly or through silence, is by definition both “right” and “good.”
This view constitutes “halakhic positivism,” which maintains that the revealed law contains within it the entire scope of meaningful values, including morality, and is therefore not subject to any kind of examination by external criteria. According to halakhic positivism, R. Lichtenstein’s reference to “ethical paucity of his legal resources” is an oxymoron, as the law itself defines what is ethical. A corollary of halakhic positivism is “halakhic formalism,” which holds that the objective halakha determines the full range of duties for a Jew. What is not addressed by the halakha outright is necessarily a “devar reshut” (a matter of personal choice), devoid of any moral weight.
Of halakhic positivism, R. J. David Bleich writes that “such a position recognizes the norms of Halakhah as constituting the sole constraints upon human conduct.” A corollary of the resulting “moral stance,” he admits, is that it “permits an individual to take advantage of any loophole in the law which may present itself and to do so without feeling any degree of culpability based upon an ultimate moral concern” (“Is There an Ethic Beyond Halakhah?” The Philosophical Quest: Of Philosophy, Ethics, Law, and Halakhah, 137-138).
Halakhic formalism, then, readily solves our problem by denying that it exists in the first place. If all halakhic responsibility has been fulfilled, by definition no ethical concern remains, and practitioners of halakha can feel reassured that they are meeting the full standard of conduct expected of them.
Critique of Response #1
For all of its simplicity, the position of halakhic positivism runs into some obvious difficulties. One is a central proof-text for R. Lichtenstein’s own aforementioned assertion:
Rav Yochanan said, “Jerusalem was destroyed because they judged [in accordance with] Torah law within it.” Well, should they have followed the laws of the Magians instead?! Say, rather, because they based their judgments solely upon Torah law and did not act “lifnim mi-shurat ha-din.” (Bava Metzia 30b)
Thus the Talmud introduces the concept of “lifnim mi-shurat ha-din,” an expectation of conduct that lies “beyond the boundary of the law.” In other words, according to Rav Yochanan, the courts of Jerusalem did everything right by halakhic standards but were held accountable for exactly that—not aspiring to something further. Clearly, something “beyond” must exist that is not encompassed by the halakha, implying that it not only has ethical standing but can be intuited by and demanded from the individual (or at least from judges).
For R. Bleich, though, the quote from Bava Metzia proves just the opposite:
Despite the nomenclature employed in describing this norm, viz., “lifnim mi-shurat ha-din — beyond the boundary of the law,” adherence to the standard denoted thereby is prescribed as normative and binding and hence endowed with the essential attributes of Halakhah.... [This] proof-text certainly establishes beyond a reasonable doubt that failure to adhere to a standard of lifnim mi-shurat ha-din is a culpable offense — and the punishment meted out at one point in Jewish national history was the destruction of Jerusalem. No less! “Ain onshin ela im ken mazhirin — There can be no punishment other than upon admonition” is not only a fundamental principle of Jewish law, but is the expression of an elemental principle of justice. Accordingly... that lifnim mi-shurat ha-din is mandated as a normative and binding standard of conduct, must be conceded by all. (126)
According to R. Bleich, adhering to a standard beyond the letter of the law is actually part of the law itself. The very fact that God punished a community for its strict adherence to the plain law is proof enough that lifnim mi-shurat ha-din is not truly “supererogatory” (beyond what is required) but falls within the basic obligations of appropriate conduct.
R. Bleich’s position, though, must confront other difficulties, as highlighted in a critique by R. Eugene Korn. A halakhic formalist will have to refute every supposedly extra-halakhic value—“middat chasidut” (a quality of the pious), “darkhei chokhma” (ways of wisdom), and the like—by claiming that they, too, are subsumed within normative halakha. The result is both a tautology—whatever is virtuous we will call halakha because formalism holds that halakha defines all that is virtuous—and a dilution of the very concept of law. At the extreme, even R. Bleich concedes that there is an area of Jewish ethics which is highly individualized—the commandment to imitate the Divine. In R. Bleich’s words, “The command is normative, but at the same time it establishes a relative norm commensurate with each individual’s apprehension of the divine essence” (138). R. Korn counters that a “relative norm” that corresponds to one’s spiritual persona is paradoxical. We could call this a command to pursue virtue or to aspire to godliness, but not a din.
Furthermore, troubled by the apparent subjectivity of this mitzva, R. Bleich explains in what sense it is still objective:
Yet, although the standard is relative and varies from person to person, the standard to be applied to each individual is, at least in the eyes of the Deity, objective and mandatory. Hence, even ethical obligations of this nature can well be termed a facet of Halakhah or normative law. (140)
For R. Bleich any apparent subjectivity in this mitzva is an illusion. Heaven has set an objective standard for each person, whose task is to best intuit where his or her bar might lie. R. Korn, again, is hardly satisfied with this resolution. “Positivist halakhah,” he asserts, should be “objective, open to human analysis and determination; its study is a cognitive and discursive enterprise, not an intuitive nor a mystic experience.”
Finally, halakhic positivism invites a problem of epistemology. If all of our moral knowledge flows from the revealed halakha, how would we know what “lifnim mi-shurat ha-din” is? Even if we were convinced that lifnim mi-shurat ha-din is technically binding (thus resolving the challenge to formalism), we would still be bereft of any moral compass that could tell us what to do and where the new limits lie.
Response #2: Natural Morality
A second possible response to perceived gaps in halakha is to fill the void not with additional halakhic precepts, but with ethical duties independent of halakha. These duties result from humanity’s essential identity as moral beings whose actions are invested with meaning, prior to and independent of Divine commands.
This view maintains that morality is both inherent in nature and actionable without Divine input. Concepts of “right” and “good” exist even without Divine knowledge, which is why it is meaningful to call God “just” and why Avraham was able to challenge him, “Shall, then, the Judge of the whole earth not do justice?” (Bereishit 18:25).
To be sure, we can delineate various levels of natural morality claims. The term “natural morality” itself implies the limited suggestion that the natural world is morally laden. Notions of “good” and “bad” exist even in the absence of Divine revelation. R. Lichtenstein strongly defends this notion, and even R. Bleich is willing to concede it. “Natural law,” on the other hand, means that natural morality imposes specific demands on moral agents. Even without Torah, we would hold a murderer liable for his heinous act.
Even if we accept natural law, though, this doesn’t mean that it has relevance for us in a post-Sinaitic world. One could argue that natural law reigns in the absence of revelation, but the revealed Torah either preempts or supersedes all of its obligations.
A more ambitious claim would be that natural law is not a relic of Jewish history but is alive and obligatory today for even the halakhically bound Jew, not because Torah is deficient but because the two systems are complementary. Mori ve-rabbi R. Yehuda Amital, zt”l, for instance, rejects halakhic formalism because:
According to this view, which zealously tries to defend the honor of the Torah, there is no connection between God, Creator of man, and God, Giver of the Torah, as if that which God implanted in man’s heart does not belong to God. (Jewish Values in a Changing World, 23)
It seems that R. Amital sees confluence between natural law and halakha for theological reasons, as both systems emanate from a single, unifying Divine source.
Natural law, then, compels us to act ethically even when halakha does not dictate to do so. Furthermore, such an admission does not imply that halakha is incomplete but, rather, that it takes for granted the natural law that, for a believer, was ordained by the same Giver of law. Regarding cannibalism, R. Amital explains:
It seems obvious to me that God does not want man to eat human flesh. The Torah fails to mention that the eating of human flesh is forbidden, not because it is permitted, but because certain things are so obvious that it is unnecessary for the Torah to state them. (39)
Critique of Response #2
One obvious problem that arises with the natural law response but not with halakhic positivism is the existence of conflicts. With halakhic positivism there exists only a single source of morality, but belief in natural law introduces a second source which does not always accord with the halakha. Difficulties that jump to mind include mitzvot that call for collective killing, such as the mitzvot to eliminate Amalek, the seven Canaanite nations and the inhabitants of an “ir ha-nidachat” (a wayward city of idol worshippers).
R. Amital stresses that Divine commands take precedence over natural law. Even so, “this does not mean that we are supposed to modify our moral outlook so that it should be in keeping with the Torah’s commands” (31). Our natural moral instincts are legitimate, virtuous, and commendable, even if the halakha temporarily suspends them.
This resolves the practical conflict but not the underlying discordance. Moreover, the very argument that validates the partnership of natural law and halakha—that both come from the same Divine source—simply shifts the contradiction to God Himself: How could His commandment demand something that revolts the human heart He crafted?
One possibility is to defend all of God’s commandments as somehow moral, even if they defy our intuitive understanding. Thus R. Walter Wurzburger writes, “Once God is defined as the supreme moral authority, obedience to divine imperatives emerges as the highest ethical duty. Thus, Abraham’s readiness to sacrifice Isaac... was a perfectly moral act” (Ethics of Responsibility, 19).
If this point is correct, though, why should we not reshape our moral thinking in light of the Akeida—or, for that matter, Amalek? Moreover, even without confronting contradictions to halakha, nature and instinct do not always read like an open book. Countering those who celebrate a Talmudic passage (Eiruvin 100b) that suggests we could have learned modesty from the cat and chastity from the dove, R. Bleich (quoting Professor Marvin Fox) contends that “we might just as readily have decided to imitate the ferocity of the lion, the murderousness of an aroused pack of wolves, and the sexual behavior of a rabbit” (136). Even with regard to human moral intuition, does the diversity of moral systems and opinions in the world not give us pause?
Response #3: Expanded Interpretations of Jewish Duty
A third approach sits midway, in a sense, between the first two. It rejects strict halakhic formalism but seeks to locate further ethical duty within a broader conception of Jewish tradition and obligation, rather than outside of them, as natural law does. This approach wants to “have its cake and eat it too.” It adheres to formalism by maintaining that the obligations of Jewish living indeed address the full range of ethical responsibilities, but it avoids the narrowness of halakhic formalism by asserting that Jewish duty doesn’t end with the law.
Of course, the conceptual strength of this approach is also its greatest challenge. It needs to demonstrate genuinely Jewish responsibilities that lie outside of the boundaries of codified halakha, something that neither strict halakhic formalists nor natural law theorists need to do. We will present two different solutions to this particular dilemma.
Solution A: “Halakha,” Reinterpreted
Mori ve-rabbi R. Aharon Lichtenstein suggests that the term “halakha” is ambiguous and can actually refer to two different concepts. The first is din, connoting Jewish rules or laws; the second is the full breadth of Jewish tradition and Torah she-be’al peh, “roughly the equivalent of halakhic Judaism” (“Does Judaism Recognize an Ethic Independent of Halakhah?” 51). In answering “how independent of Halakhah is the ethic that ennobles us above the ‘scoundrel with Torah license’ [one who circumvents the law],” R. Lichtenstein writes:
If we regard din and Halakhah as coextensive, very independent. If, however, we recognize that Halakhah is multiplanar and many-dimensional; that, properly conceived, it includes much more than is explicitly required or permitted by specific rules, we shall realize that the ethical moment we are seeking is itself an aspect of Halakhah. The demand or, if you will, the impetus for transcending the din is itself part of the halakhic corpus. (40)
This obligation R. Lichtenstein mainly finds in the concept of lifnim mi-shurat ha-din, thus returning it to its plain, paradoxical meaning: “Halakhah itself mandates that we go beyond its legal corpus” (42).
Where R. Lichtenstein differs from strict formalism, then, is in emphasizing the unique character of lifnim mi-shurat ha-din. R. Bleich highlights its formal elements—an opinion that counts it as one of the 613 mitzvot, Jerusalem’s destruction as a punishment—and thus concludes that lifnim mi-shurat ha-din is “endowed with the essential attributes of Halakhah” (126). R. Lichtenstein, in contrast, points to its “crucial distinction from din”—its subjective and contextual nature, as well as the Maharal’s interpretation that Jerusalem’s fall was a natural consequence of draconian policies rather than Divine retribution for the transgression of law (47). What they agree upon, however, is that higher ethical aspirationdefinitely falls within the boundaries of halakhic calling.
Solution B: Covenantal Ethics
R. Walter Wurzburger offers a different solution, not by widening the scope of “halakha” per se but by invoking our covenant with God, which, according to R. Wurzburger, transcends mere adherence to the law. R. Wurzburger observes that “the Bible records a variety of covenants that do not mandate obedience to specific norms but establish a unique relationship between God and man” (Ethics of Responsibility, 14). Even berit Sinai (the covenant at Sinai), the ultimate source of halakhic obligation, includes a more sweeping mandate to be a “holy people” (Shemot 19:6; see Ha’amek Davar there) (26). Regarding the realm of ethics, “Jewish ethics encompasses not only outright halakhic rules governing the area of morality, but also intuitive moral responses arising from the Covenantal relationship with God, which provides the matrix for forming ethical ideals not necessarily patterned after legal models” (15).
R. Wurzburger pluralistically invokes multiple covenants and sources of obligation, referring alternatively to berit Avot (the covenant with our Forefathers), berit Sinai and broad, open mitzvot such as “you shall do the right and the good” (Devarim 6:18). While he mainly focuses his attention on the Sinai experience and the obligations that emanate from it, perhaps his most innovative point, which he cites from his mentor R. Joseph B. Soloveitchik, is that the covenants prior to Sinai continue to have binding force upon our conduct, beyond our halakhic obligations (14-15). This insight will form the backbone of the rest of this study, as it will further explore the full content (beyond the ethical) of berit Avot and its nuanced interaction with the halakhot of Sinai.
Summary and Critique of Response #3
Both R. Lichtenstein and R. Wurzburger find an obligation for ethical conduct inside of Judaism but outside of law. However, to the extent that this third response sits somewhere between formalism and natural law, R. Lichtenstein and R. Wurzburger each occupy a slightly different position on that spectrum.
As such, each of them will have to bear some of the critiques of the earlier responses. R. Lichtenstein, whose approach falls somewhat closer to the pole of halakhic formalism, articulates the counter-arguments himself:
First, if lifnim mi-shurat ha-din is indeed obligatory as an integral aspect of Halakhah, in what sense is it supralegal?... Second, isn’t this exposition mere sham? Having conceded, in effect, the inadequacy of the halakhic ethic, it implicitly recognizes the need for a complement, only to attempt to neutralize this admission by claiming the complement has actually been a part of the Halakhah all along, so that the fiction of halakhic comprehensiveness can be saved after all. (46)
R. Lichtenstein needs to walk a fine line between what I would call “halakhic inclusivism” and legal formalism. He does so, as mentioned above, by stressing the contextual nature of lifnim mi-shurat ha-din. Furthermore, R. Lichtenstein’s “inclusivism” seems to be motivated by something different from R. Bleich’s formalism. Halakhic formalism comes from a general skepticism about natural law that therefore eschews anything other than Divine commands. R. Lichtenstein, on the other hand, aspires for inclusivism not because of the illegitimacy of natural law but because of his vision of halakha.
For R. Lichtenstein, halakha does not fill in moral lacunae but purposely seizes the full scope of a Jew’s duties in order to frame them within a Divine-human relationship. As such, “Integration of the whole self within a halakhic framework becomes substantive rather than semantic insofar as it is reflected in the full range of personal activity” (51). It is not that an ethic could not exist independent of halakha. Rather, it is inconceivable that halakha would not integrate such a critical dimension of human moral life.
R. Wurzburger, on the other hand, liberates himself fully from any halakhic formalism, but this leaves open the question of what “Covenantal Ethics,” the term he coins, will actually draw from. To fill that void, R. Wurzburger speaks of “the intuitions of a moral conscience formed within the matrix of Torah teachings” (28). However, this formulation is subject to two critiques. First, in order to build an ethical conscience from the law, one probably needs to approach the law with some preconceived moral values in order to discern where it should guide us further. Presumably, R. Wurzburger will have to embrace some degree of natural morality, which exposes him to its critics.
Second, as R. Wurzburger himself notes, “Since subjective intuitions play a significant role in Jewish Covenantal Ethics, the resulting system cannot avoid the difficulties besetting all forms of intuitionist ethics” (34). Thus he concludes, “In areas where halakhic guidance is unavailable there is no mechanism by which competing moral claims can be adjudicated” (39).
The resultant ambiguities, though, do not deter him. Employing ethical intuition, for R. Wurzburger, is not just a method for deriving an ethical response, but is itself an aspect of participating in a living covenant with God:
To properly fulfill our Covenantal obligations, it is not sufficient to satisfy the minimal requirements demanded by the Law; we must respond to an all-encompassing summons addressed to us as free individuals in our existential subjectivity, uniqueness, and particularity by God, Who is absolutely One and Unique. (Ethics of Responsibility, 32)
Beyond demanding adherence to an objective code, the covenant calls upon the individual to actively and creatively respond to it in each nuanced scenario. Thus, subjective intuition (in both the ethical and spiritual domains) is not a liability but an essential component of religious life.
Moving forward, we will return to R. Wurzburger’s essential thesis in future shiurim and further explore what meaning berit Avot may have for ethics and other Jewish values today.
For Further Analysis:
While this shiur explored ethical obligations outside of halakha, similar questions could be raised about the spiritual and ritual spheres. Are there spiritual aspirations that set limits on our conduct beyond the specific demands of halakha? If so, from where do they derive? Are the theories above applicable to the ritual realm? Parallel to the Ramban’s commentary to Devarim 6:18, see his commentary to Vayikra 19:2 and 23:24, as well as his “Derasha Le-rosh Ha-shana” in Kitvei Ramban, vol. 1 (Jerusalem, 1991), 218-219.
Available, with minor changes, at http://www.comparativelawreporter.com/articles/is-there-an-ethic-beyond-halakhah/.
 If R. Bleich’s conclusion is correct, then we must redefine din itself. Rather than view it as the baseline requirements of conduct, in most cases it actually falls below the standard that halakha requires. In what sense, then, is it din? Perhaps we could translate din as “justice” rather than “law,” in which case the Torah is saying that merely doing what is objectively just vis-א-vis the other party does not fulfill one’s personal obligations.
 “Legal Floors and Moral Ceilings: A Jewish Understanding of Law and Ethics,” Edah Journal 2:2 (Tammuz 5762). Available at http://www.edah.org/backend/JournalArticle/korn2_2.pdf.
 Rambam Hilkhot Avadim 9:8.
 To be sure, R. Bleich’s position in the cited article is nuanced. At times he defends halakhic formalism; at others (particularly towards the conclusion) he seems to accept an ethic “which is beyond the recorded Halakhah;” “cannot be captured in precise, unequivocal formulae;” and “is recorded in the Aggadah rather than in the Halakhah.” Similarly, there is a “highly relative” standard that derives from “an individual’s metaphysical comprehension of the nature of the Deity,” but perhaps “God’s essence can be discovered, not from the study of ethics, but from the pages of the Talmud” (141)—in other words, halakhic positivism. One might want to associate R. Bleich’s position with that of R. Lichtenstein (presented below), but R. Bleich specifically distances himself (see note 12 below). My overall impression is that R. Bleich persistently gravitates towards halakhic formalism, even as he occasionally diverges from its most extreme formulation.
 One could respond by invoking the Ramban’s commentary to Devarim 6:18, which some read as saying that a deep engagement with din guides the way for lifnim mi-shurat ha-din (see, for instance, R. Walter Wurzburger, Ethics of Responsibility: Pluralistic Approaches to Covenantal Ethics [Philadelphia, 1994], 27, 37). Once halakha commands that we must transcend mere din, opportunities for excellence will be self-evident from meditating on the content of the din itself. It seems to me, though, that this position entails at least some softening of the positivist position. The moral sensitivity that is required to read the law openly and liberally cannot itself emerge from a reading of the law, as pure positivism would require.
 For a review of natural morality in Jewish tradition, see Avi Sagi and Daniel Statman, “The Dependence of Morality on Religion in Jewish Thought” (Hebrew), in Between Religion and Ethics, eds. Avi Sagi and Daniel Statman (Ramat-Gan, 1993), 115-44. Also see R. Bleich’s own “Judaism and Natural Law,” The Philosophical Quest, 85-124.
 To this we could perhaps respond that when the bulk of commandments point in one moral direction, the outliers are readily identifiable. Even if they are by definition “ethical” in the abstract as God’s will, we need not try to reconcile them with our general impressions of morality. But what measure should we use to assess a mitzva’s morality? If we just hold halakhot to the external criteria of natural morality, then we approach R. Amital’s position. But if we want halakha to itself serve as a source for building and shaping moral thinking and not just conform to it, then a priori sorting of mitzvot into models and exceptions is problematic.
 Thus R. Bleich concludes that his position is “substantively in agreement with the position adopted by Rabbi Aharon Lichtenstein in his classic essay on this topic. Yet,” he continues, “I do not believe that the question is ultimately one of definition of terms, as Rabbi Lichtenstein asserts” (133).
 Also see “Covenantal Imperatives” in Covenantal Imperatives: Essays By Walter S. Wurzburger on Jewish Law, Thought, and Community (Jerusalem, 2008), 46-54. In this earlier essay, R. Wurzburger is responding more to existential critiques of Judaism as mechanical and impersonal rather than to ethical critiques of Judaism as too narrow. The need for ongoing personal engagement with the covenant actually answers both problems.