Is There an Ethic Beyond Halakhah?

June 1, 2010 by J. David Bleich

The question, as formulated, constitutes not one but at least four separate questions.  It would seem appropriate to consider those questions in serial order.

            I.          Is there a standard of conduct to which persons may be held, and according to which human actions may be judged, other than the standard reflected in normative law?  The identical question may be rephrased in another form:  Is there a standard of lifnim mi-shurat ha-din or is the sole moral standard that of din itself?  The answer to the question thus formulated is obvious.  Rabbinic literature is replete with references to ethical norms described as lifnim mi-shurat ha-din.  The very juxtaposition of the two categories constitutes an acknowledgement of standards of lifnim mi-shurat ha-din which are not coextensive with din.                

            Nevertheless, the question is entirely cogent; it need only be recast in a somewhat different form.  The question properly posed is:  Is the standard described as lifnim mi-shurat ha-din, in actuality, simply another aspect of a multifaceted Halakhah or does the category of lifnim mi-shurat ha-din, in some fundamental sense, transcend Halakhah?                        

            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 was certainly the position of Rabbi Isaac of Corbeille who, in his Sefer Mitzvot Katan (Semak), enumerates the obligation to act lifnim mi-shurat ha-din as one of the 613 divinely ordained commandments.  In support of that thesis Semak cites the statement of the Gemara: “Rav Johanan said, ‘Jerusalem was destroyed because [the inhabitants] judges [in accordance with] Torah law.’  Should they rather have followed the law of the Magians?  Say, rather, because they based their judgments solely upon Torah law and did not act lifnim mi-shurat ha-din.” [1]

            It must be granted that Semak’s conclusion reflects an individual opinion rather than a halakhic consensus.  Yet, di minimus, his 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”[2] is not only a fundamental principle of Jewish law, but is the expression of an elemental principle of justice.  Accordingly, Semak’s basic point, i.e., that lifnim mi-shurat ha-din is mandated as a normative and binding standard of conduct, must be conceded by all.  The sole issue which is the subject of contention among early authorities (Rishonim) is whether or not this obligation is accorded the status of an explicitly enumerated and self-contained mitzvah.  The concept of a binding Sinaitic obligation not explicitly enumerated as one of the 6l3 precepts is not at all foreign to the annals of Halakhah.  In all cases, inclusion or exclusion from the formal catalogue of 6l3 commandments is entirely devoid of substantive import.

            To be sure, Rosh, Baba Metzi’a 2:7, declares that a human court cannot compel action lifnim mi-shurat ha-din.  However, the Mordekhai, Baba Metzi’a, sec. 257, cites two earlier authorities, Ravan and Ravya, who maintain that such action could indeed be compelled.  Ravya is similarly cited by Hagahot Maimuniyot, Hilkhot Gezelah 11:3.  That controversy, in turn, appears to be predicated upon a disagreement between Rabbah, the son of Rav Huna, and Rav which is recorded in Baba Metzi’a 83a:

            Some porters [negligently] broke a barrel of wine belonging to Rabbah, the son of R. Huna.  Thereupon he seized their garments; so they went and complained to Rav.  “Return them their garments,” he ordered. “Is that the law?” he inquired.  “Even so,” he rejoined:  “That thou mayest walk in the way of good men” (Proverbs 2:20).  Their garments having been returned, they observed, “we are poor men, have worked all day, and are in need. Are we to get nothing?”  “Go and pay them,” he ordered. “Is that the law?”  he asked. “Even so,”[3] was his reply:  “and keep the path of the righteous” (Proverbs 2:20).

            There is no question that the strict letter of the law holds porters liable for damages resulting from their negligence.  Having failed to perform their duties, they certainly had no claim in din for compensation.  Nevertheless, Rav not only absolves them of all tort liability but also accords them an actionable claim for their hire.  The actionability of a claim, which can only be described as a claim lifnim mi-shurat ha-din, is assuredly proof positive that the obligation is firmly rooted in Halakhah.  Actionability is, after all, the litmus test of a cognizable legal obligation.

            It should not be inferred that Rav — or the Mordecai — assert that all obligations lifnim mi-shurat ha-din are actionable.  That is patently not the case.  On the contrary, actionability with regard to such matters is the exception rather than the norm.  A precise analysis of the circumstances in which such obligations are actionable is beyond the scope of the present discussion.  Suffice it to say that, as pointed out by Rabbi Isaac ha-Levi Herzog,[4] examination of the relevant Talmudic discussions yields at least eight diverse categories of lifnim mi-shurat ha-din which do not ordinarily give rise to actionable claims.  These distinct categories of lifnim mi-shurat ha-din reflect diverse degrees of ethical obligation and are accompanied by varying degrees of moral censure for failure to comply.  Listed in decreasing order or resemblance to normative law they are as follows:

            l.          Dinei shamayim or obligations with regard to which the individual is culpable in terms of the “Judgments of Heaven”— obligations which are imposed in order to fulfill one’s duty vis-à-vis Heaven, as distinct from obligations which are recognized by human courts.[5]  Chief among obligations of this nature is the obligation to make restitution for tort damages inflicted other than by means of a proximate cause (gerama be-nezakin) and an obligation to make whole for losses suffered as a result of failure to give evidence.  These Talmudic formulae expressly acknowledge both obligation (hayyav) and legal norms (dinei shamayim).  Such obligations are distinguished from other legal obligations solely by virtue of the fact that they are non-actionable.

            2.         Nikra rasha — acts of commission or of omission which give rise to application to the perpetrator of the epithet “wicked person.”  Censure of this nature is expressed by means of formal proclamation of the individual’s wickedness in the form of public denunciation in the synagogue.  Although less ominous than excommunication by means of “bell, book and candle,” the very prospect of public censure and humiliation undoubtedly sufficed, at least in the vast majority of instances, to guarantee adherence to otherwise unenforceable standards of conduct.  Thus, if the details of a contemplated sale, including the purchase price, have been negotiated and agreed upon, third parties are enjoined from interfering with consummation of the transaction by tendering a more enticing offer to the seller.[6]  Insofar as din is concerned, since the conveyance has not yet been finalized, there is nothing which prevents a third party from interposing himself and consummating the sale on his own behalf.  One who does so, in violation of the norms of lifnim mi-shurat ha-din, certainly acquires valid title.

            3.         Mi she-para — a formal curse invoking divine retribution pronounced upon a vendor who  actually accepts the purchase price but takes advantage of the technicality of law under which he may withdraw from the bargain because of failure formally to transfer title by means of executing one of the statutory modes of conveyance (kinyan).[7]

            4.         Latzet yedei shamayim — a duty that must be performed in order to satisfy an obligation imposed at the “hands of Heaven.”  Example: A person commits an act of theft but the victim cannot be identified with certainty.  In the absence of positive identification of the victim, no claim can be pressed against the thief.  The nature of his obligation vis-a-vis any one of the possible victims is in the nature of an “obligation doubtful” rather than of an “obligation positive.”  Although the thief can avoid the claim of any plaintiff, the onus of guilt, nevertheless, remains upon him.  He has, after all, committed an act of theft and remains in possession of the stolen property.  He may only purge himself of guilt in the eyes of Heaven by restoring the stolen property to its rightful owner.  The only certain method by which this can be accomplished is by making restitution to each of the persons he may have victimized.[8]

            5.         Mehusar amanah – a person lacking in trustworthiness.  An oral promise to buy or to sell is not binding, but one who fails to honor his word exposes himself to censure and to the social and societal sanctions attendant upon a determination of dishonesty.[9]  Both censure and sanctions are regarded as entirely appropriate despite the absence of a culpable offense.

            6.           Ein ruah hakhamim noheh heimenu – “The spirit of the Sages is not pleased by him.”  A primary example is that of an individual who totally disinherits his children in favor of others.[10]   The children certainly have no rights which may be asserted against the testator or his property and the latter owes his children no pecuniary duty.  The concern, as evident from the comments of Rashi, Baba Batra l33b, is to avoid arousing feelings of animosity, to prevent alienation of filial affection and to preserve familial harmony and tranquility.  Quite evidently, promotion of such goals generates obligations, which devolve upon the individual.

            As stated, this category of lifnim mi-shurat ha-din serves to enjoin conduct which produces an undesirable effect.  A corollary principle stated in the positive serves to command certain affirmative actions: Ruah hakhamin noheh heimmenu – “The spirit of the Sages is pleased by him.”  Moral approbation is bestowed upon an individual who behaves in a manner which serves to advance certain desiderata, e.g., a debtor who repays a loan cancelled by the advent of the Sabbatical year despite the absence of any formal obligation to do so.[11]

            7.         Ein lo alav ela ta’arumot — “He has only a grievance against him.”  An agreement for the performance of labor or personal service may be cancelled by either party prior to actual commencement of performance.  Nevertheless, the person relying upon the agreement is justifiably aggrieved and the person breeching the agreement is deemed to have violated a moral norm.[12]

            8.         Midat hasidut — a trait of the pious. A prime example of conduct categorized in this manner is the case of an individual of substantial means who, as a wayfarer, legitimately accepts tithes which, ordinarily, only the poor are entitled to collect.  Since he has no access to his own funds this individual is technically a “poor man” and is entitled to benefit from such tithes.  Such a person is under no obligation subsequently to restore the tithes which he has accepted when he was in need.  His obligation is no greater than that of a pauper who accepts alms but subsequently becomes wealthy.  Acceptance of charity does not generate a contingent obligation to return charitable gifts when the recipient is in a financial position to do so.  The wayfarer is a “poor man”; the tithes are a gift, not a loan.  However, since the net result is that the truly needy are not able to benefit from the resources which have been appropriated by this individual, it is to be hoped that he will act in the manner of the pious and that upon reaching his home, he will set aside a sum equal to the value of the tithes which he has received and make those funds available to the poor.[13]  This final category of lifnim mi-shurat ha-din is distinguishable from the earlier enumerated categories in that, while conduct in accordance with the “trait of the pious” is commended, failure to comport oneself in this manner does not entail disapprobation.

            Although these categories do not give rise to actionable claims, they are very much part of the legal system of Judaism.  The concept of lifnim mi-shurat ha-din assuredly plays a much more prominent role in Jewish jurisprudence than it does in other systems of law.  This is not at all surprising in light of the strong emphasis in Jewish jurisprudence upon the concept of duty as distinct from the concept of right.  As the late Professor Moshe Silberg has so eloquently pointed out, even in enforcing matters of justiciable law, the Bet Din is concerned primarily with assuring fulfillment of duties rather than in enforcing rights.[14]

            Yet these categories are not without parallel in other legal systems. The prominent Roman law scholar, J. W. Salmond, distinguished between “perfect rights” and “imperfect rights.”  Perfect rights are actionable in a court of law; while imperfect rights are rights which are recognized by law but which do not generate correlative duties enforceable in a court of law.[15]  Imperfect rights, although they are accorded a measure of recognition, are not actionable.  The claim is recognized but not enforced although the claim may entail certain legal ramifications.  The best example is a statute of limitations for monetary claims.  After the statute of limitations has expired, no action for recovery of a debt can be instituted.  Nevertheless, the debt does not become extinct with the result that if the debt is honored, by reason of ignorance of the law or otherwise, there can be no recovery on the part of the debtor.  In other words, the obligation exists, but is not enforceable.  The right is recognized with the result that it is a “ground of defense though not of action,” i.e., if the debt is repayed the debtor cannot sue to recover on the grounds that the debt has been extinguished by operation of the statute of limitations.

            The concept of an obligation solely latzet yedei shamayim is closely analogous.  Although an obligation solely “at the hands of Heaven” is not enforceable by a human court, nevertheless, an individual who, through ignorance of the legal nature of such a claim or otherwise does satisfy such an obligation, has no claim for recovery.  Moreover, according to many authorities, obligations encompassed in this category are such that, although the court will not enforce the obligation, if the claimant exercises self-help in seizing property for the purpose of satisfying such a claim, the party against whom such a right is asserted has no claim for recovery.

            The various categories of lifnim mi-shurat ha-din are carefully delineated in rabbinic sources and assigned appropriate gradations of approbation or opprobrium.  Definition of the varying concepts is primarily by example.  Application of these categories to other unspecified forms of conduct can be accomplished only by means of extrapolation of the underlying principles or by analogy.  Yet it is clear that (1) the principles are deemed to be objective rather than subjective and (2) the categories are themselves encompassed within the corpus of Halakhah.

            I suspect that these comments are substantively in agreement with the position adopted by Aharon Lichtenstein in his classic essay on this topic.[16]  Yet, I do not believe that the question is ultimately one of definition of terms, as Lichtenstein asserts, with the result that it is possible to define the concept of an ethic beyond Halakhah in a manner which allows for an affirmative answer to the question as heretofore formulated.

            II.        Having assimilated the concept of lifnim mi-shurat ha-din to din itself, we are now in a position to pose the second question: “Does Judaism recognize an ethical standard beyond the eight categories herein enumerated?”  Having, in effect, stated that the Jewish legal system may be reduced to a dichotomy consisting of duties which can be compelled and duties which cannot be compelled, the next question which must be asked is whether there exists principles of ethical conduct which are not encompassed within any of the delineated classes but which enjoy recognized standing.  There can be little question that rabbinic writings reflect a certain tension with regard to this issue.  At times such writings appear to recognize the existence of standards of this nature; and at other times they appear to deny the contention that there can be any legitimacy to a claim of ethical standing on behalf of any standard or value not explicitly posited within the corpus of Halakhah.

            Ostensibly, one example of this tension is to be found in the exchange of letters between Rabbi Mordechai Jacob Breisch and Rabbi Moses Feinstein regarding the permissibility of artificial insemination utilizing the semen of a gentile donor.[17]  Rabbi Feinstein’s responsa addressing this question are a model of formal legalism.[18]  He marshals the objections which have been set forth with regard to artificial insemination and demonstrates that they are not applicable to situations in which the donor is a non-Jew.  Thus, he finds a permissive conclusion to be inescapable.  Rabbi Breisch, on the other hand, quite apart from the legalistic caveats which he advances, dwells repeatedly and at length upon what he perceives to be the morally reprehensible nature of the procedure.  Certainly, the casual reader could well be left with the impression that Rabbi Feinstein is concerned only with technical formulation of the law and rejects the notion of an ethical standard which transcends Halakhah, while Rabbi Breisch, unwilling to assume that his legal prowess will enable him to make his point convincingly within the confines of Halakhah itself, appeals to a standard of moral behavior which is not rooted in narrow technicalities of the law.  But, in point of fact, such a reading of that exchange would be a complete misreading of their debate.  In actuality, each of the arguments advanced, including an appeal to concepts of abomination (to’evah) and sanctity, is an argument based upon technical, formal provisions of Halakhah and supported by proof-texts designed to show that the ethical standard which is posited is, in reality, a halakhic standard.

            The question of whether or not there exist ethical standards in addition to the eight earlier enumerated categories of lifnim mi-shurat ha-din can itself be formulated in two distinct ways:

            1.         Does Judaism recognize a subjective morality?  Is there room in Judaism for accommodation of the moral demands advanced by individual conscience?  To that question the answer must be an emphatic no.  Indeed, the question is unequivocally answered in the negative by R. Ovadia Bartenura in the opening section of his commentary on Ethics of the Fathers.

I declare that because this tractate is not predicted upon explication of any particular commandment of the Torah, as are other tractates of the Mishnah, rather [it consists] in its entirety of moral maxims and ethical qualities.  And [since] the wise men of the nations of the world also composed works according to the fancies of their hearts dealing with ethical conduct. . . . therefore the Tanna began this tractate [with the words] “Moses received the Torah from Sinai” indicating that the ethical qualities and moral maxims which are [contained] in this tractate were not the fancies of the Sages of the Mishnah, but that even they were revealed at Sinai.

It clearly follows from these comments of Bartenura that any valid system of ethics must be Sinaitic in origin.  The very possibility of a subjective morality is dismissed out of hand.  The contents of Tractate Avot are clearly regarded as being in the nature of halakhah le-Mosheh me-Sinai.  As such, the content of a system of ethics of this nature is not only objective, rather than subjective, but is, accurately speaking, merely a sub-category of Halakhah.

            2.         However, precisely the same question can be reformulated in a second manner:  Is there a natural morality which is discoverable by reason?  The content of such a moral system might well be coextensive with the content of dogmatic ethics but might yet be endowed with independent validity.  That such a concept exists is manifest in biblical verses such as “Shall the Judge of all the earth not do justice?” (Genesis 18:25).  Nevertheless, an affirmative answer to this question does not dispose of the issue.  The concept of natural morality must be distinguished from the concept of natural law.  To say that a proposition is endowed with moral meaning and validity on the basis of reason alone does not ipso facto endow it with the status of a legal norm binding upon all upon pain of punishment.  Moreover, if raised to the status of law by virtue of revelation, the meta-ethical issue recedes into insignificance.  The crucial question is whether the claims of natural morality are to be affirmed only in a trivial sense or whether they are to be regarded as valid in any sense which carries with it ethical significance.  If the content of a putative natural morality has been confirmed and endowed with binding force by revelation, it is then no longer terribly significant to determine whether natural morality does indeed exist independently of revelation.  The question which then must be resolved is whether there is a content of natural morality which is not encompassed within the subject matter of Halakhah.  The proof-text usually cited in support of such a position is the statement recorded in Eruvin 100b, “If the Torah had not been given, we could have learned modesty from the calf, not to rob from the ant, chastity from the dove, proper conjugal behavior from the rooster.”  Yet, the very formulation of the conditional phrase “if the Torah had not been given” indicates that the content of these maxims of natural morality are identical with the moral precepts of revealed Sinaitic law.  Moreover, as Marvin Fox has pointed out, if we lived in a pure state of nature what would have prompted us to emulate these particular animals and these particular modes of behavior?  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 the rabbit.[19]  Or, as Richard Wollheim, who did not have the text of Eruvin before him, asks, “Are we . . . to model ourselves upon the peaceful habits of sheep or upon the internecine conflicts of ants? Is the egalitarianism of the beaver or the hierarchical life of the bee the proper example for human society?  Should we imitate the widespread polygamy of the animal kingdom, or is there some higher regularity of which this is no more than a misleading instance?”[20]  Moreover, any attempt to assert a natural morality leads to several problems:

            (i) Natural morality can be apprehended only by the light of reason.  How can conflicts between individuals involving contradictory claims asserted in the name of natural morality be resolved?  Acceptance of a concept of natural morality can very readily lead to a state of affairs that can perhaps best be described as ethical solipsism, i.e., a person may well find himself the sole inhabitant of a private ethical realm in which he recognizes moral principles which are shared with no other person.  Elsewhere[21] I have argued that it is for this reason that Maimonides rejects the notion of a natural law of any really meaningful scope.

            (ii) Granted that reason can apprehend certain moral principles, the problem which then presents itself is: What compels an individual to accept such a morality as binding?  What are its sanctions?  Or put somewhat differently:  Why be moral if such morality is predicated simply upon the dictate of reason?

            Recognition of the inherent difficulties associated with a concept of natural morality leads to a position which can best be described as halakhic formalism or halakhic positivism.  Such a position recognizes the norms of Halakhah as constituting the sole constraints upon human conduct.  In turn, a system of this nature makes possible improvisation of devices such a prosbul, heter iska, carefully drafted testaments to avoid statutory principles of inheritance, etc.  This is not necessarily to condemn such legal constructs as being tainted with any degree of immorality.  But, such a position does lead to a moral stance, which 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.

            Nevertheless, there does appear to be at least one significant area of morality which is at one and the same time both natural in essence and Sinaitic in normative form.  The morality thus described establishes broad categories of conduct but does not provide details governing specific action.  This morality is grounded upon the commandment “Ve-halahta be-derakhav — You shall walk in His ways” (Deuteronomy 28:9) and reflects the principle of imitatio Dei.  A morality based upon this principle has, as its first premise the notion that “G-d is good” is an analytic proposition.  Man, then, is commanded to emulate the essence of the Deity.  In doing so, man aspires to a standard of conduct which, of necessity, is not spelled out in formal, legalistic codes.   Establishment of this standard of conduct is predicated upon a prior ontological commitment.   The Midrash, Va-Yikra Rabbah 24:9, states:  “’Be thou holy.’ Perhaps even as I?  Therefore it is stated, ‘for I am holy.’  My sanctity transcends your sanctity.”  That remarkable statement is primarily an ontological proposition and only derivatively a statement regarding human actions.  It constitutes an invitation to partake of the Divine essence but qualifies the invitation with the caveat that the goal can be achieved only imperfectly.  The command is normative, but at the same time it establishes a relative norm commensurate with each individual’s apprehension of the Divine essence.

            The relative nature of this concept is perhaps best reflected in the anecdote concerning Rabbi Judah the Prince related by the Gemara, Baba Metzi’a 85a.  R. Judah suffered excruciating pain for many years until the pain subsided suddenly.  In the following narrative, the Gemara explains both why R. Judah experienced suffering and why the suffering was ultimately alleviated:

A calf, when it was being taken to slaughter, went and hung its head under Rabbi [Judah's] cloak and cried.  He said to it, “Go, for this wast thou created.”  [In heaven] they said, “Since he has no mercy, let suffering come upon him.” . . . One day Rabbi [Judah's] maidservant was sweeping the house; some young weasels were lying there and she was sweeping them away.  Rabbi [Judah] said to her, “Let them be; it is written  ’And His tender mercies are over all His works’ (Psalms l35:9).”  [In heaven] they said, “Since he is compassionate, let us be compassionate to him.”

            Reflected in this account, and in the moral principle derived therefrom, is the distinction between normative law and ethical conduct above and beyond the requirements of law.  In its normative law, Judaism codifies standards applicable to everyone and makes no demands that are beyond the capacity of the common man; but at the same time, Jewish teaching recognizes that, ideally, man must aspire to a higher level of conduct.  That higher standard is posited as a moral desideratum, albeit a norm which is not enforceable by human courts.  As stated by Rabbi Moshe Chaim Luzzato in a different context, “The majority of the community cannot be hasidim; rather, it is sufficient for them that they be tzaddikim.”[22]

            To be sure, not every person succeeds in reaching a degree of intellectual and moral excellence such that he perceives the need and the obligation to conduct himself in accordance with a higher standard of conduct of such a nature.  Nevertheless, those who do attain such a level of moral perfection are obliged, at least in the eyes of Heaven, to conduct themselves in accordance with that higher standard.  No human court can inquire into the degree of moral perfection attained by a particular individual and hence, such a court cannot apply varying standards to different persons.  The heavenly court, however, is in a position to do so and, accordingly, will punish a person who does not comport himself in accordance with the degree of moral perfection which he has attained.  In this vein, the Gemara, Baba Kamma 50a, cites the verse “And it shall be very tempestuous about Him” (Psalms 50:3) and, in a play on the Hebrew word “sa’arah” which connotes both “tempestuous” and “hair,” declares, “The Holy One, blessed be He, is particular with those around Him even with regard to matters as light as a single hair.”

            Rabbi Judah’s conduct, for lesser mortals, would be beyond reproach.  Indeed, we have difficulty understanding why even Rabbi Judah should have been found to have been ethically remiss.  Certainly, the slaughter of the animal did not constitute a moral lapse.  Yet, Rabbi Judah’s reaction betrays a certain insensitivity.  That insensitivity is morally anomalous in a man of Rabbi Judah‘s intellectual stature.  Heightened moral sensitivity is born of intellectual perfection and hence standards of behavior to which a person is held are commensurate with the individual’s awareness and apprehension of the Divine essence.  Such obligations are clearly relative, just as awareness of the Divine essence is relative.  The standard of conduct to which the individual is to be held is relative and, in a sense, is indeed solipsistic in nature, since no two individuals can have the same apprehension of the Divine.

            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.  That, too, is reflected in the story concerning Rabbi Judah and the calf.

            There is, to be sure, a certain tension in the emphasis placed upon a relative standard as distinct from emphasis upon an objective standard applicable to all.  This is reflected in the fear expressed in some rabbinic circles concerning concentration upon “ethical” obligations as distinct from normative Halakhah.  The “disdain” of the ethical is born of two considerations.  The dictum, “Would that they would forsake Me but observe My Torah” (Palestinian Talmud, Haggigah l:7) means nothing other than “Would that they were concerned with normative law rather than with ethical conduct.”  Reflected in this concern is the fear that undue concentration upon an attempt to capture the essence of the Divine and attendant obligations which transcend normative law may degenerate into antinomianism.[23]  The second concern is that ethical reflection can, after all, add but little to what may be discovered by an examination of normative law.[24]  Hence, the opposition in some circles to the study of mussar literature.[25]  Ultimately, as illustrated by the above-cited dictum, G-d’s essence can be discovered, not from the study of ethics, but from the pages of the Talmud.

            III.       This then leads us to a final reformulation of the original question.  Is there an ethic beyond the recorded Halakhah?  To this the answer is:  Of course!  To the extent that da’at Torah is a cognitive discipline that is precisely what it endeavors to explicate and it is precisely for this reason that Halakhah is an art rather than a science. 

            The crucial problem with regard to the content of this ethic, which is beyond the recorded Halakhah, is that, by virtue of its very nature, it cannot be captured in precise, unequivocal formulae.  This is so, at least in part, because it is so highly relative and because it is both commensurate with, as well as derivable from, an individual’s metaphysical comprehension of the nature of the Deity.  To the extent that it is recorded, it is recorded in the Aggadah rather than in the Halakhah.  It is precisely because the contents of this ethic is not amenable to a precise formulation that it is expressed in figurative, metaphorical language and often couched in hyperbole.    

*J. David Bleich is the Herbert and Florence Tenzer, Professor of Jewish Law and Ethics, at Benjamin N. Cardozo School of Law.  Additionally, Dr. Bleich is professor of Talmud (Rosh Yeshiva) at Rabbi Isaac Elchanan Theological Seminary, an affiliate of Yeshiva University, and is head of its postgraduate institute for the study of Talmudic jurisprudence and family law.

[1] Baba Metzi’a 30b.

[2] Sanhedrin 56b.

[3] Dikdukei Sofrim reports that the word “In” meaning “even so” does not appear in any of the manuscripts available to him.  Relying largely upon the absence of the word “In,” Ephraim E. Urbach, Hazal PirkeiEmunot ve-De’ot  291 (Jerusalem, 5736), asserts that determination of lifnim mi-shurat ha-din  is entirely subjective and hence conformity with that standard is a matter of voluntary decision.  Assuming, arguendo, that the matter rests upon the presence or absence of this single word Urbach’s conclusion is overstated.  The presence of the word cannot be dismissed as a mere printer‘s error.  The word “in” is present in all published texts which, in turn, were based in part upon manuscripts not available to Dikdukei Sofrim.  More significantly, the authorities cited by Mordekhai and Hagahot Maimuniyot cannot be ignored or dismissed out of hand.  Those authorities clearly understand Rav’s response as indicating a normative, binding obligation.  Hence, if Urbach’s textual analysis is accepted, it must be concluded that the word “in” was indeed present in the manuscripts consulted by those authorities.  In actuality, the manuscript reading lends itself to the identical interpretation.  In response to the query “Is that the law?” Rav replies, “and keep the path of the righteous.” Rabbah was clearly reluctant to pay the porters’ wages as he was already advised to do so by Rav— hence his query with regard to legal liability.  The authorities cited, quite cogently understand Rav’s reply not as a mere reiteration of his earlier advice, which might have been understood by Rav as merely moral in nature, but as explicitly affirming a normative and binding obligation.  In either event, whatever the correct textual reading may be, it is undeniable that Ravan and Ravya regarded the lifnim mi-shurat ha-din of Baba Metzi’a 83a as reduced to din itself.

[4] 1 “Moral Rights and Duties in Jewish Law,” The Main Institutions of Jewish Law 383-85 (London 1936).

[5] See Baba Kamma 55b-56a.

[6] See Kiddushin 59a.

[7] See Baba Metzi’a 44a.

[8] See Id. at 37a.                                                       

[9] See Id. at 49a.

[10] See Baba Batra 133b.

[11] See Shvi’it 10:9.

[12] See Baba Metzi’a 75b.

[13] See Hullin 130B; Baba Metzi’a 52b.

[14] Moshe Silberg, Law and Morals in Jewish Jurisprudence, Harv. L. Rev. 306-31 (1961).

[15] It should be noted that Kant formulates a distinction between “perfect duties” and “imperfect duties.”  See The Philosophy of Law 26 (W. Hastie trans., Edinburgh, 1887), and Fundamental Principles of the Metaphysics of Morals 39 (Thomas K. Abbott trans., New York, 1949).  Although Kant uses the terms in an entirely different sense, a note to the discussion in the Metaphysic of Morals indicates that in “the use of the word adopted by the schools .  . . [Perfect duties are usually understood to be those which can be enforced by external law; imperfect, those which cannot be enforced].”

[16] “Does Jewish Tradition Recognize an Ethic Independent of Halakha?” Modern Jewish Ethics: Theory and Practice 62-88 (Marvin Fox ed., Columbus, 1975); reprinted in Menachem Marc Kellner, Contemporary Jewish Ethics 102-23 (New York, 1978).

[17] 3 She’elot u-Teshuvot Helkat Ya’akov 45-52 (Bnei Brak, 5726).

[18] 1 Iggerot Mosheh, Even ha-Ezer § 10, § 71 (New York, 5721).  Rabbi Feinstein’s reply to Rabbi Breisch which originally appeared in Helkat Ya’akov Id. has been included with brief additions in his Dibberot Mosheh on Ketubot § 1 (Bnei Brak, 5744).  Additional replies to opposing views appear in the same volume, § 2 and § 3.

[19] The Philosophical Foundation of Jewish Ethics: Some Initial Reflections 14 (Cincinnati, 1979).

[20] 5 “Natural Law,” The Encyclopedia of Philosophy 451 (New York, 1967).

[21] “Judaism and Natural Law,” scheduled for publication in volume VI of The Jewish L. Ann.

[22] Mesilat Yesharim, §13.

[23] Cf. Hazon Ish al Inyanei Emunah Bitachon ve-Od § 5 (S. Greineman ed., Jerusalem, 5714).

[24] Cf. 4 Rabbi. Chaim of Volozhin, Nefesh ha-Hayyim, § 1.

[25] See comments of R. Chaim ha-Levi Soloveitchik crted in R. Joseph B. Soloveitchik, “Ish ha”Halakhah,” Talpiyot, I, §3-4, 698 (April-September, 1944).