Shiur #44: Pursuit of the Ethical Life (15): Living with Tzedaka U-Mishpat Part III: Interaction with the Law
Dedicated In loving memory of
Dr. Saul G. Agus z"l
whose yahrzeit falls on Iyar 3
Marcelle A. Agus and
the Agus/Fox Families
Dr. Saul G. Agus z"l
whose yahrzeit falls on Iyar 3
Marcelle A. Agus and
the Agus/Fox Families
In discussing the relevance of moral intuition generally, and tzedaka u-mishpat specifically, to Jewish life, we have until now focused upon their contributions independent of the law. That is, we have deliberately looked for legal vacuums, such as devar ha-reshut, communal governance, prosecution “not according to Torah,” and the non-legal dimensions of intricate issues, to demonstrate how the ever-present values of tzedaka u-mishpat might suddenly make their impact. Even when there are clearly overlapping areas of concern, as with regard to the responsibility of charity, we have related to berit Avot and berit Sinai separately, as if they operate in parallel but have little interaction between them.
However, I believe that an authentic picture is more complex. If the values of berit Avot are truly ever-present, then perhaps they might be influential not only when the law falls silent, but also in the interpretation and application of the law. Conversely, berit Sinai might help shape the pursuit of berit Avot values, exerting its influence even when it does not impose specific obligations. This shiur will further explore these possibilities.
Moral Considerations Within Halakhic Analysis
Mori ve-rabbi HaRav Aharon Lichtenstein cautiously suggests that moral values may play a part in shaping halakhic thinking, on two different levels. First, Halakha often incorporates human factors, through concepts such as hefsed merubeh (inordinate loss), tza’ar (suffering) and kevod ha-beriyot (human dignity), as legitimate, internal variables that influence the legal calculus. Additionally, where there is a difference of opinion, Halakha may allow reliance on an otherwise rejected minority opinion in extenuating circumstances (she’at ha-dechak).
This attentiveness to she’at ha-dechak reflects “concern for the human and social element within pesikah [decision-making]” (“Human and Social Factor,” 172) and, by extension, validation of the ethical intuition necessary to recognize it. A halakhic authority must be sensitive enough to notice a she’at ha-dechak and sufficiently motivated to act upon it, and identification with tzedaka u-mishpat, I submit, as well as with other values, supports both qualities. Ethical numbness, according to HaRav Lichtenstein, is just as distorting to Halakha as excessive flexibility: “For insensitive pesikah [decision-making] is not only lamentable apathy or poor public policy. It is bad Halakhah.” (175)
Somewhat more radically, HaRav Lichtenstein also suggests that one’s values may influence how one reads, interprets, and applies the law, to the extent that there is indeterminacy in any one of those steps. Here, we are not dealing with an exceptional she’at ha-dechak, personal or collective, that exerts pressure on Halakha, but an overall orientation that will a priori tend to prefer certain types of outcomes over others.
Halakhic analysis, HaRav Lichtenstein repeatedly stresses, must be performed with absolute fealty to the process and to the concept of Divine command. Furthermore, no one teaches us to submit to God’s necessarily moral Will — however inscrutable, at times, to mere humans – more than Avraham, at the Akeida. But where human judgment is involved, moral sensibility is a welcome influence.
Drawing upon the Akeida as a metaphor, HaRav Lichtenstein writes:
Moral standards and axioms have a critical role to play in the interpretation and delineation of Halakha. Of course, a Jew must answer “hineni” (here!) (Bereishit 22:1, 11) if the command of “Offer him there as a sacrifice” (22:2) is thrust upon him; but before he unsheathes the knife, he may, and indeed must, verify to the best of his ability — is he in fact commanded so? Is the message that clear-cut? And is the clash of values necessarily so direct? To the degree that there is room and need for interpretation — and this we must clarify — a sensitive and insightful conscience is one of the factors that can shape one’s judgment. Just as the Rambam, in his time, consciously utilized metaphysical assumptions in order to interpret Biblical verses, so can a moral outlook be employed in order to determine the content of Halakha, and to draw, at times, its boundaries. (“Halakha Ve-halakhim,” 47)
HaRav Lichtenstein follows this assertion with important qualifiers. If one is to cautiously probe the possibilities of Halakha, it must be done from a genuine desire to understand its calling, not to judge it, or, worse, to distort it. Moreover, not every well-meaning student of Torah will possess the requisite knowledge, experience, dedication, and gravitas to ensure that such an inquiry proceed with integrity and free from undue influences. The potential for distortion, or even abuse, then, is apparent; “but the principle remains unchanged.”
Halakha and Berit Avot
HaRav Lichtenstein, then, validates the possibility of moral conscience and sensibility within halakhic argumentation. But we may still ask: What justifies and impels this kind of consideration? Moreover, if a rabbinic authority is not instinctively motivated by an innate moral sense, what else can provide inspiration?
Here, I believe that the values of berit Avot may be particularly instructive. To be sure, there are reasons internal to berit Sinai to seek sensitive and compassionate pesak. HaRav Lichtenstein, for instance, explains the flexibility of she’at ha-dechak through “the obvious desire and duty to employ every possible means to assist those in need… rooted and expressed both in specific precepts and in the omnibus drive towards imitatio viarum Dei” (“Mah Enosh,” 45). The command to perform ha-yashar ve-hatov might also be relevant, as might Chazal’s principle of “[The Torah]’s ways are ways of pleasantness” (Mishlei 3:17).
However, we are in murkier territory, I think, when we are addressing not the lacunae between laws, but the interpretation and application of the law. One could counter, for instance, that ha-yashar ve-hatov and even imitatio Dei are directed mainly at the unlegislated aspects of life but are functionally superseded by God’s revealed command.
Berit Avot, on the other hand, as a genuinely independent source of Jewish obligation, lays a transcendent, ever-present responsibility upon the Jew, even regarding his or her relation to berit Sinai! Berit Avot and berit Sinai do not govern separate domains of Jewish life. Rather, they make pervasive, complementary demands upon the Jew, who must consistently respond to both simultaneously.
When an outright clash arises, the obligations of berit Sinai will necessarily prevail, not because it has priority over berit Avot but by dint of its very definition as a system of law. It is not that berit Avot bends to berit Sinai, but that values bend while law does not. Fundamentally, though, they govern Jewish life together, neither one trumping the other.
Thus, while clear legal duty overrides the pursuit of tzedaka u-mishpat, these values become relevant whenever there is any kind of gap or indeterminacy in legal obligation, ranging from wholly neutral areas to those governed by clear norms whose application is nevertheless subject to judgment. Berit Avot always informs a Jew’s sensibilities and orientation, even when he or she is submitting to Divine Will and, thus, in how he or she carries out Divine Will.
Avraham and Moral Tension
In a sense, the very audacity to wonder, probe, challenge, and then submit is itself a derivative of berit Avot. The dominant message of berit Sinai is obedience, pithily captured by the phrase, “Na’ase ve-nishma” (we will perform, and we will heed) (Shemot 24:7). Duties to imitate God and pursue ha-yashar ve-hatov notwithstanding, I’m not sure that berit Sinai alone could sufficiently inspire or support the exercise of vigorous moral conscience within halakhic analysis. Berit Avot, on the other hand, invites Avraham into partnership and explicitly encourages and respects his ethical questioning.
It is not coincidental, I think, that HaRav Lichtenstein repeatedly turns to Avraham and his legacy to illustrate the place for conscience within halakhic interpretation. For example, HaRav Lichtenstein writes that the inclination to suppress human conscience as an affront to Divine Will is enticing. “However, for the descendants of our forefather Avraham, to respond to its whispers and gestures is forbidden.” He continues:
As such, we must of course embrace the message of the Akeida; but that is without letting go of “Could the Judge of the whole earth [not do justice?]” (Bereishit 18:25) — to be ready to submit “like animals” but to aspire to be “humans” (see Chullin 5b), within the recognized boundaries that God demarcated for us. (“Halakha Ve-halakhim,” 51-52)
In other words, Parashat Vayera captures opposing themes through its bookends: of Avraham’s readiness to probe and even challenge in the context of Sedom’s judgment, and of his submission in the context of the Akeida.
Moreover, while the dominant messages of Sedom’s judgment and the Akeida, respectively, are in conflict, each narrative contains the counter-message as well. Regarding Sedom, Avraham ultimately relents; in fact, perhaps it is his humble readiness to do so from the outset, as “dust and ashes” (Bereishit 18:27), that validates his questioning in the first place. Regarding the Akeida, on the other hand, HaRav Lichtenstein highlights Avraham’s probing, absent from the text but filled in by Torah She-be’al Peh:
In the Midrash, Chazal depict Avraham’s thoughts during his three-day journey to the akeida. He tried to understand God’s command: perhaps God meant something else.
Furthermore, Avraham’s ultimate submission does not erase the significance of his prior deliberation for us:
We need not wish away Avraham’s three days of spiritual groping. We need not dismiss the wrestling and grappling as being a reflection of poor yirat Shamayim, of spiritual shallowness, or of a lack of frumkeit. Inasmuch as goodness itself is an inherent component of frumkeit, the goodness which is at the root of the problems, struggles and tensions is itself part of yirat Shamayim — and a legitimate part. If the sense of moral goodness is legitimate, then the questing and the grappling are also legitimate. (By His Light, Chapter 6)
This conclusion, of course, is perfectly fitting for a conflict between Divine command and transcendent vision, between law and values, between berit Sinai and berit Avot. As we have seen repeatedly, even when the law trumps the values of berit Avot, it does not vanquish or silence them. Rather, they retain their full vitality and force in surrender and continue to animate the child of Avraham, even as he or she wholeheartedly carries out God’s revealed Will.
Living with Tension
One who is genuinely allegiant to both covenants will not seek to ease the tension that results from their competing demands; rather, he or she will embrace it, as well as the conflicting emotions that may ensue. In Shiur #27, we saw how HaRav Lichtenstein celebrates the love of the Land of Israel that brought great men to tears upon imagining its partition, even as he himself encourages territorial compromise. Similarly, in a frank and penetrating interview, HaRav Lichtenstein stresses the rabbinic tradition that Avraham cried at the Akeida, despite total fidelity to his mission. Bereishit Rabba recounts:
Avraham thrusts his hand to seize the knife, and tears flow from his eyes and fall into the eyes of Yitzchak, out of the compassion (rachmanut) of a father. Nonetheless, the heart is happy to carry out the bidding of its Creator. (56:11)
HaRav Lichtenstein acknowledges that for some, the lesson of the Akeida is that a person should be able to slaughter his or her child, if so commanded by God, just as easily as he or she would slaughter a chicken. However, HaRav Lichtenstein objects:
I do not think like this, I do not understand one who thinks like this, and I have not the slightest doubt that the Torah, Chazal, and our medieval scholars did not see it this way. I do not see this as an ideal. I do not yearn to be like this; I do not yearn for my children be like this; not for my students to be like this, not for my neighbors to be like this, and not for the Jewish nation to be like this.
Moreover, I do not see in this greatness. Were I to believe that our forefather Avraham related to the Akeida as if he were slaughtering a chicken, I would not revere him more. I would revere him less.
This we don’t need — we have many people that can slaughter [a chicken].
Avraham emerges, then, as a model and basis for moral conscience, even as he also offers the supreme lesson in how to surrender to the will of the Almighty. His legacy of tzedaka u-mishpat, qualified by the alacrity with which he pursues the Akeida (see Bereishit 22:3), gives us license and duty to incorporate ethical considerations into halakhic thinking, license that I don’t think we would learn from berit Sinai on its own.
Regarding our own occasional sense of dissonance between halakhic obligation and moral intuition, HaRav Lichtenstein similarly advocates for delicately embracing tension without wavering in commitment:
We need, in candor, to avoid merely stonewalling realities or sidestepping issues…
We encounter elements which we describe, not only euphemistically but genuinely, as difficult; and the art of halakhic living is, at times, not so much discovering the answers as knowing how to live with the questions…
Each of us, who is halakhically committed, abides by devar Hashem, even when we have not fully comprehended, or, possibly, not yet fully internalized, its total message. (“The Human and Social Factor,” 184-185)
As disciples of Avraham, we neither suppress our own intuition nor conceitedly judge God and His Will by it. Where there is room, one sufficiently suffused with the spirit of Chazal and intimate knowledge of their world may cautiously and consciously allow commitment to tzedaka u-mishpat to influence halakhic interpretation. Where there is not, we unreservedly affirm, “God’s ordinances are true, they are righteous together” (Tehillim 19:10).
Selling Land to Non-Jews
To illustrate the role of moral values in halakhic analysis, we may perhaps look to a response that HaRav Lichtenstein penned to a rabbinic proclamation against the sale of property in the Land of Israel to non-Jews. The main target of his criticism is not the signatories’ lack of political correctness, but their orientation to Halakha. From the vantage point of the proclamation:
Any position or opinion that could have been relied upon to moderate the stance taken in the letter simply does not exist.
HaRav Lichtenstein, with characteristic command of the halakhic source material, notes that there is enough ambiguity within the primary texts to cast doubt on the relevance of such a prohibition to the contemporary context. Sensitivity to the ethical and sociological repercussions of discrimination could have taken that into account. But instead, “the required willingness to examine approaches that would limit the prohibitions associated with this issue, given that there are tools and materials that enable such limitations, is completely absent from the letter.”
HaRav Lichtenstein’s closing is both cryptic and telling at once:
We, who dwell in the beit midrash, remain committed to our belief and desire “to proclaim that God is upright, my Rock in whom there is no wrong” (Tehillim 92:16).
At stake, it seems, is an opportunity to affirm our commitment, as well as God’s, to fairness and justice, to tzedaka u-mishpat, and to let those values help guide us through complex halakhic terrain. If the proclamation fails at that task, then HaRav Lichtenstein speaks in its place.
Berit Avot and Berit Sinai Together
In considering the relationship between berit Avot and berit Sinai, we have so far looked at situations in which berit Avot addresses voids in berit Sinai or in which it helps shape our interpretation of berit Sinai. Finally, we want to turn the tables and consider what berit Sinai contributes to the ethical vision of berit Avot.
A common problem with many ethical theories is that their limited number of broad, abstract principles can be difficult to translate into concrete recommendations for specific situations. Tzedaka u-mishpat are certainly lofty goals, but, standing on their own, they provide only vague direction. Similarly, asking “What would X do?” is so malleable that it can be twisted in almost any direction with just a little ingenuity.
Berit Sinai can contribute to berit Avot’s relevance and functioning in two senses. First, it effectively constricts an otherwise overwhelming playing field of ethical options by providing clear instructions, or at least a limited number of possibilities, for many circumstances. Second, the intricate laws of berit Sinai not only delimit the open territory but also cast their shadow upon it. As we believe in Halakha not only as binding but also as illuminating and ennobling, we aim to carry its immanent messages into the spaces between its rules.
In our pursuit of tzedaka u-mishpat, we seek guidance first and foremost from He Who is most “righteous and upright” (Devarim 32:4), through the medium of His revealed Word. R. Anthony Knopf writes:
Learning the sections of Torah that deal with moral principles enables us to understand and inculcate the perspectives on such fundamental concepts as responsibility, dignity and justice. It is through this process that our moral clarity is preserved.
Halakha refines our ethical sensibilities generally and can provide category-specific content, even when it does not insist on a particular course of conduct. In HaRav Lichtenstein’s words, we approach devar ha-reshut “not without preconceptions but without preconditions” (“Communal Governance,” 74). In seeking to formulate a genuinely Jewish response in any given area, we turn to Halakha for its articulation of concerns, for its advocacy of certain values, and for its insight into the balancing of competing interests.
R. Walter Wurzburger further infers this relationship between formal law and what he terms “Covenantal Imperatives” — “Jewish religious imperatives for which no specific halakhic sources can be invoked” — from the Ramban’s commentary on “ha-yashar ve-hatov” (Devarim 6:18) that we have so frequently referenced. The Ramban describes a progression from specific rules to a generality:
Rather, after [God] had mentioned many [rules of behavior], such as “Do not trade in tales” (Vayikra 19:16), “Do not retaliate, and do not bear a grudge” (verse 18), “Do not stand idly by the blood of your friend” (verse 16), “Do not curse the deaf” (verse 14), “Rise before age” (verse 32), and others like them, [Moshe] continued by saying generally that one should do ha-tov ve-hayashar in every matter.
R. Wurzburger infers that the generality does not just plug holes left by the prior rules but emerges organically and takes shape from them: “It is through understanding of particular instances that we learn to grasp intuitively the range of situation to which a vague general rule may be applicable” (“Covenantal Imperatives,” 53). Ethical inquiry, in part, will consist of deep study and analysis of Halakha, for “by a process of extrapolation from the various specific norms contained in the Torah we are expected to obtain a sense of our ethical requirements.” (“What is Unique About Jewish Ethics?” 36)
According to R. Wurzburger, the Ramban’s approach “validated the intuitions of a moral conscience formed within the matrix of Torah teachings” (Ethics of Responsibility, 28). However, while the Ramban only relates to berit Sinai rules and generalities, R. Wurzburger thinks more broadly about covenantal imperatives and the source material from which they are formed. He proposes:
That we mine the treasures of both Halakhah and Aggadah to extract guidelines for a Jewish ethics which addresses itself to all areas of life. Exposure to Jewish teachings and practices will lead to the formation of authentically Jewish intuitive ethical responses, which are bound to differ from those which were influenced by different cultural milieus. (“What is Unique About Jewish Ethics?” 36)
Thus, even though tzedaka u-mishpat have obviously universal elements, their pursuit within the rubric of Halakhic living will take on a distinct flavor for the children of Avraham.
The Conceptual Study of Torah She-be’al Peh as a Generator of Values
A dialectic, then, develops between berit Avot and berit Sinai. Berit Sinai gives shape and direction to the overarching but vague values of berit Avot. At the same time, sensitivity to the values of berit Avot is what allows a searching soul to identify the themes and values that lie beneath Jewish case law and extrapolate them to other situations. In other words, what one finds in the law is partially dependent on what one brings to it and what one is looking for. The values of berit Avot are a crucial starting point for a reading of Halakha that can itself further nurture and refine those same values.
A project to “mine the treasures of both Halakhah and Aggadah to extract guidelines for a Jewish ethics” may find certain approaches to the study of Torah She-be’al Peh more useful than others. Schools of analysis which focus on texts, in all their intricacies, or on arriving at practical legal rulings will likely find it challenging to think beyond the confines of received law. A “conceptual approach,” on the other hand, which seeks to elicit the underlying logic of halakhic arguments, seems uniquely suited to derive principles from the legal literature which can inform dilemmas and situations that lie beyond its explicit reach.
Elsewhere, I have advocated for the utility of the conceptual approach for Jewish bioethics, as many modern phenomena simply defy description by classic halakhic categories. The conceptual approach can collect relevant source material and try to delicately cull principles whose relevance extends beyond the specific cases discussed. At broader levels still, it can help us construct an outlook on an entire domain, such as conceptions of Jewish peoplehood or the Land of Israel and responsibilities to them; for that reason, conceptual analysis of Torah She-be’al Peh forms the backbone of this series.
To Toil in Torah
A final methodological word of caution is in order: the study of Torah She-be’al Peh is hard. Halakha has vast treasures to offer in terms of values and perspectives, but the conceptual depth and sophistication of our yield will be directly proportional to the breadth, rigor, and intensity with which we pursue our investigations. Cursory analysis, at best, produces shallow insight; and, at worst, confirms suspicions that the Jewish tradition has little wisdom to offer towards modern dilemmas.
The conceptual approach, at its best, requires extensive research that scours rabbinic literature across the millennia for relevant source material and continues to refine propositions and add further nuance to them as more and more data amass. It is continually testing its theories against new information and willing to reformulate its hypotheses in broader and broader contexts. Finally, though I think we can look to conceptual approaches to nourish a broader ethical outlook, we must also recognize that it is by nature logically stingy, making no more assumptions than necessary and demanding of exceeding precision about what has and hasn’t been proven.
Here, too, the legacy of mori ve-rabbi HaRav Lichtenstein can be instructive. His collected writings on issues of Jewish thought and policy reflect an exquisite blend of exacting, conservative analysis with creative insight and application. His thought and scholarship illuminate the path and provide an intellectual compass for anyone interested in similar explorations.
Questions or Comments?
Please email me directly with your feedback at [email protected]!
 Also see “Mah Enosh,” 26-50.
 See “Darkhei No’am,” Encyclopedia Talmudit, Vol. 7, 712-715. Also see Sanhedrin 45a, 52a-b; and Rambam, Hilkhot Shabbat 2:3.
 HaRav Lichtenstein comments, “There is no sharper anti-humanistic formulation than that” (Halakha Ve-halakhim, 49).
 See, for instance, Bereishit Rabba 56:5; Tanchuma, Vayera, 22-23.
 Also worth considering is HaRav Lichtenstein’s position, shared with his mentors R. Joseph B. Soloveitchik and R. Ahron Soloveichik, on violating Shabbat in order to save the life of a non-Jew. See R. Dov Karoll, “Laws of Medical Treatment on Shabbat,” in: And You Shall Surely Heal, Vol. 1 (New York: 2009), 216-220, available here. Regarding R. Soloveitchik’s position, also see Prof. Gerald Blidstein, “Halakha and Democracy,” Tradition, 32:1 (Fall 1997), 30. For a counterexample in which HaRav Lichtenstein rejects halakhic accommodation, see his exchange with R. Binyamin Lau regarding a blemished priest’s inability to participate in the Temple worship, available here. My thanks to R. Jonathan Ziring for suggesting this counterpoint.
 Also see HaRav Lichtenstein, “Does Judaism Recognize an Ethic Independent of Halakhah?” Leaves of Faith: The World of Jewish Living, 50.
 “What is Unique About Jewish Ethics?” in Covenantal Imperatives: Essays by Walter S. Wurzburger on Jewish Law, Thought, and Community (Jerusalem: 2008), 36. Also see his “Covenantal Imperatives,” ibid., 46-54 and Ethics of Responsibility: Pluralistic Approaches to Covenantal Ethics (Philadelphia: 1994).
 Similarly, see his commentary on Vayikra 19:2.