Law and Morality

Are ethics and law at odds? Does the law define what is ethical, or do ethical concerns have their own purchase on the law? These questions, universally applicable, have special relevance to a religious culture like Judaism, whose traditional law is embodied in the vast corpus of halakhah. 

The online journal Textual Reasoning, which mixes philosophical analysis with close textual study, takes up the issue in a recent symposium. As the philosopher Samuel Fleischacker notes in the introduction, modern liberal movements in Judaism have argued that the religion must be understood as about ethics above all—and that this is the yardstick by which halakhah is to be judged and, at times, disregarded. To traditional thinkers, by contrast, key modern Western concepts  like the centrality of individual autonomy, or the view that religious life is an affair of private conscience alone, are either foreign to Judaism or are themselves to be found, explicitly or implicitly, within the halakhah itself.

Contributors to the symposium tackle the question of law and/or morality from a variety of angles. Daniel Statman of Haifa University notes that while the issue may have exercised certain classical Jewish philosophers, it was not on the minds of subsequent jurists. Rather, they, like their counterparts everywhere, accepted the law as a given, while at the same time fluidly applying to its rules and precedents their logical reasoning, their interpretive choices, and their moral and prudential sense. Only with the ideological battles of modern times did this flexible tradition take on an increasingly rigid form in which halakhah came to be seen by its Orthodox adherents as an entirely self-contained set of doctrines operating with a logic of its own, unsullied by intuitive moral sense or mere pragmatism.  

Statman rightly observes that a fair reading of halakhic literature cannot sustain the latter view. But how then to characterize the place of moral and other judgments in shaping the law? There can be, he writes, no sweeping answer to that question, although there is also no substitute for a detailed study of Jewish legal history in all its variety—or for the recognition that moral judgments themselves need not be inherently "liberal" in the contemporary sense, and may be quite the opposite. 

Whether this celebration of historical complexity can actually inform working jurists is, however, another question.  As the legal scholar Suzanne Stone points out, legal theorists can strive to bring to the fore the various ethical and other value judgments implicitly at work in the halakhic process, but this does not mean that halakhists, who by definition work from within, can deduce law from them. To Shalom Carmy, the aspiration of halakhah to "embrace the totality of life," together with its origin (according to the Orthodox view) in divine revelation, precludes any tidy lining-up with any one particular moral philosophy. Today's dominant systems of ethics define the ethical within the arena of social relations, while in the scope of halakhah the issue of "what we owe one another" forms only a single element.  

A refreshing angle on the issue is suggested by Mark Rosen.  Rather than speaking in terms of moral philosophies, which may or may not inform the law, it might make better sense to think in terms of legal cultures that embrace a range of values, both substantive (what is good and what is bad) and procedural (who decides and how), granting some of them precedence over others. Genuinely new values are the work of prophets and similarly revolutionary figures, who come along only so often.  A legal culture can create procedures for accepting and enunciating such new values (think of constitutional amendments in U.S. law or, in Jewish law, the rulings of the Great Sanhedrin), for reinterpreting existing values, or for arguing that what seems like a new value was actually there all along.

Adopting this "cultural" approach would mean that, instead of searching the Talmud for comments that sound as if they could have sprung from the mind of Immanuel Kant or John Rawls, we would try to grasp both the tradition's underlying legal values on their own terms and the processes by which halakhah has interpreted and at times reinterpreted them.  That attempt would itself rest on the kind of thorough historical research stipulated by Statman, while appreciating the tradition's ongoing life outside of historical categories. Crucially, it is a form of deep analysis in which both traditionalists and practicing jurists could recognize themselves and their ideas.

By way of testing the value of such a cultural approach, let us get down to cases. A controversial treatise published several months ago by two Israeli rabbis, Torat Hamelekh ("The King's Torah"), sanctioned far-reaching violence against non-Jews in wartime, and greatly expanded the definition of "wartime" itself. To many who read it, religious and secular alike, the book seemed to argue, from within halakhic terms, that on this issue and presumably on others, halakhah and ethics are on starkly opposite sides.

Now a powerfully argued new volume, Derekh Hamelekh ("The King's Way"), written by a young halakhist named Ariel Finkelstain, has explicitly set out to undo that impression. Finkelstain advances several key contentions, all of which proceed from the position that, contrary to the authors of Torat Hamelekh (and a number of classical and modern authorities), the divide between Jews and Gentiles is a matter not of essence—a difference in, as it were, the composition of their respective souls—but of different responsibilities. Natural law (i.e., the norms binding on all humanity, often understood as coterminous with the Talmud's "Noahide laws") was not superseded by Israel's election and the revelation at Sinai; rather, the ethical-legal obligations of Jews, toward Gentiles and toward one another, build on but do not displace widely-shared moral commitments and common sense. When it comes to the laws of war, Jewish morality, if true to itself, will try to mitigate rather than to extend the inevitable moral deformities of violent conflict.

In neither of these two volumes is there an obvious divide between leniency and stringency; both impose severe obligations.  Both also engage in a mix of legal and philosophical analysis (the newer book with greater circumspection and self-awareness); both work with contemporary realities very much in mind (to, of course, divergent conclusions); and both interpret the relative weights and claims of inherited values, all of which, in the traditional view, can be traced to Sinai. Disentangling the many and contradictory voices of revelation is, indeed, the work of halakhah. To choose how to sift through, harmonize, or at times reject those many voices is to stand, before God and humanity, at the crossroads of responsibility and freedom.

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