A Jewish Understanding of Law and Ethics INQUIRES in JEWISH ETHICS Eugene Korn
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Legal Floors and Moral Ceilings: A Jewish Understanding Of Law and Ethics INQUIRES IN JEWISH ETHICS Eugene Korn Biography: Dr. Eugene Korn edits The Edah Journal. He is Director of Interfaith Affairs at the Anti-Defamation League and Adjunct Professor of Jewish Thought at Seton Hall University. Abstract: This paper analyzes the relationship of formal halakhah to Jewish ethical values, arguing for the necessity of extra-legal hesed, identified as autonomous action above and beyond the requirement of law ('lifnim mishurat ha- The Edah Journal din'). On halakhic, theological and philosophic grounds, the essay attempts to refute the theory of hard halakhic positivism, which maintains that formal halakhah consti- tutes the sole legitimate constraint upon human conduct and denies room in Judaism for moral demands advanced by conscience. The Edah Journal 2:2 Edah, Inc. © 2002 Tammuz 5762 Legal Floors and Moral Ceilings: A Jewish Understanding Of Law and Ethics* Eugene Korn “Is what is holy holy because the Gods approve of it, obligations can accurately depict the living covenant or do they approve of it because it is holy?” (Plato’s between God and the Jewish people. For Jews the ques- Euthyphro 10a) tion is not whether Jewish law (halakhah) is necessary, but whether it is sufficient: Is the ideal Jewish life “Civility precedes the Torah” defined exclusively by the legal decisions of halakhah, or (Avot 3:17) is another component required as a complement? Plato and Aristotle framed the question as, “What constitutes I. Introduction the good life?” but I prefer to inquire in the words of One dimension of the age-old debate between Micah, “What does God demand of us?” Christianity and Judaism concerns the nature of the bib- lical covenant between God and the Jewish people. Paul For Jews the question is not whether halakhah is of Tarsus understood the covenant to consist primarily, necessary, but whether it is sufficient. perhaps exclusively, of law (Romans 3). Hence the Christian preference to translate ‘Torah’ as ‘Law,’1 The issue at hand relates to the more general philosoph- over the more accurate literal translation ‘teaching,’ ic debate between natural law advocates and legal posi- which connotes both legal and non-legal dimensions. tivists. The debate is old, but continues unabated.2 The Because of its purported exclusively legal character, former maintain that there exist fundamental moral val- Christian theology deemed the “old” covenant spiritually ues, such as justice, that are derived from either reason destructive and needing higher fulfillment (Galatians 3, or nature and that are antecedent—both temporally and 5). Jews, of course, understand that Jewish law is con- axiologically—to any specific empirical legal code. stitutive of Judaism and Jewish identity: No interpreta- Indeed, the validity of a given legal order is judged by tion of Torah that disposes of mitsvot as binding legal the degree to which it is consistent with or promotes * This essay is dedicated to the memory of Rabbi Walter Wurzburger, zichrono l’vrakhah, an extraordinary leader of the Jewish people who merged uncompromising fidelity to halakhah with a profound understanding of of the Jewish ethics. The author thanks Professors Martin Golding and Suzanne Stone, Rabbis Saul Berman and Walter Wurzburger and Joel Linsider for their valuable suggestions to this essay. 1 This translation has its origins in the pre-Christian Septuagint, which translates ‘Torah’ as the Greek, ’nomos’. 2 Leading contemporary natural law theorists are Lon Fuller, The Morality of Law (New Haven: Yale University, 1969) and The Edah Journal 2:2 / Tammuz 5762 Korn 2 these fundamental natural values. “An unjust law is not individually is found in the formal canons of Jewish law. a law,”3 announces the natural law theorist, for if a rule In a word, the objective corpus of halakhah is the ulti- violates the moral requirements of justice it cannot be mate arbiter of what is good, right and just. valid law. In contrast, the legal positivist maintains that a legal system is validated not by independent values, Halakhic positivism has acquired high currency among but by the authority of its legislator and the coherent some modern Jewish thinkers, particularly talmudists ordering of its internal norms and principles. Nomic trained in the analytic method of study that developed validity remains independent of moral content. In fact, in the 19th and early 20th century Lithuanian talmudic for some positivists ethical values evolve out of the legal academies. A famous example is the pronouncement of code itself, which defines the concrete expression of R. Abraham Isaiah Karelitz (Hazon Ish): “Ethical obli- morality. Acknowledging no external criteria for justice, gations are at times.... one with the decisions of Jewish these legal positivists paradoxically also believe that “An law (pisqei halakhah).... The halakhah determines the unjust law is not a law,” for if it is law it is eo ipso just. prohibited and the permitted in the realm of ethics.”4 Despite the presence of the qualifier “at times,” the A Jewish variant of this positivist position has been remainder of this work seems to indicate that Hazon Ish termed “halakhic positivism.” It claims that all Jewish claims moral obligations to be totally congruent with moral values take the form of halakhic judgments halakhic decisions.5 More recently, an Orthodox rabbi (dinim). In philosophic terms, the halakhic positivist and professor of law provided another paradigm in a maintains that the proposition, “Jewish legal imperatives philosophic paper.6 He argued for an extreme version of delineate Jewish moral behavior,” is a necessary synthet- halakhic positivism—which I will term ‘hard’ halakhic ic—and perhaps even analytic—truth. God’s will in positivism7—that fuses halakhic positivism with every situation for the Jewish people collectively and halakhic formalism8, considering the two synonymous Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977) and Freedom’s Law Cambridge MA: Harvard University Press, 1996). The two primary modern legal positivists are John Austin, Theory of Jurisprudence Determined, (New York, 1914) and Hans Kelsen, General Theory of Law and State (Cambridge, Harvard University 1946) and Pure Theory of Law (Berkeley, CA: U. of California Press, 1970). For an excellent exposition of a Jewish natural law position, see David Novak, Natural Law in Judaism (New York: Cambridge University, 1998); for Jewish legal positivism, Jose Faur, “Understanding the Covenant,” Tradition 9:4 (Spring 1968) and Marvin Fox, “Aquinas and Maimonides on Natural Law, Dine Israel 3 (1972). For many seminal essays on halakhic legal theory, see Martin P. Golding, Jewish Law and Legal Theory (New York: New York University, 1993), and Jewish Law Annual, vols. VI and VII, (New York: Harwood Academic 1987, 1988). 3 “Non viditur esses lex justa non furit.” Augustine, De Liero Arbitrio 5; Aquinas, Summa Theologica, Qu. xcv, Arts. 2,4 4 Sefer Hazon Ish Emunah U'Bitakhon [Book of Faith and Trust], S. Greeneman, editor, Jerusalem, 1954, beg. Chapter 3. 5 For a divergent interpretation, see Aharon Lichtenstein, "Does Jewish Tradition Recognize an Ethic Independent of Halakha?" in Contemporary Jewish Ethics, M. Kellner editor, (Sanhedrin Press; New York 1978) p. 107. 6 Rabbi J. David Bleich, “Is There an Ethic Beyond Halakhah?” in Studies in Jewish Philosophy: Collected Essays of Academy for Jewish Philosophy 1980-1985, Norbert M. Samuelson editor, University Press of America 1987, pp 527- 546. 7 The ‘soft’ version of positivism, exemplified by H.L.A. Hart in The Concept of Law (Oxford: Clarendon Press, 1961), admits that law must have a minimum moral content. For the hard positivist, law determines morality, and specific content is not an independent criterion of law. 8 Legal formalism may be defined as the thesis that denies the need for individual discretion in the application of rules, because all valid judgments in a particular case follow objectively from clearly formulated rules. See Hart p. 126. For the issue of discre- tion in halakhah, see A. Kirschenbaum and N. Lamm, “Freedom and Constraint in the Jewish Judicial Process," Cardozo Law Review, 1 (1979), pp. 99-133. The Edah Journal 2:2 / Tammuz 5762 Korn 3 (p. 539). He contends that “the norms of halakhah con- mining what is rejected, we begin to understand what is stitute the sole constraint upon human conduct” (ibid), true. Thus deconstructing halakhic positivism may help denies that “there is any content of natural morality that us paint a picture of the holy life that traditional Jewish is not encompassed by the subject matter of the sources insist upon. halakhah” (p. 538), and insists that “there is no room in Judaism for accommodation of the moral demands One last introductory point: The determination of advanced by individual conscience” (p. 536). Thus phi- Jewish law as sufficient or merely necessary for ideal losophy sometimes makes strange bedfellows: Traditional Jewish living is no mere semantic matter, as Plato and halakhic positivists find themselves in complete agree- twentieth century meta-ethical philosophers might have ment with Christian polemicists who portray the Torah it.10 We shall soon see that the difference is substantive, and Judaic ethics as limited to law. Of course, for many containing crucial implications for halakhic orientation, Christians this legal exclusivity rendered the Torah spiri- moral experience and the quality of Jewish spiritual life. tually invalid, while halakhic positivists consider it to contain the very essence of Jewish spirituality. II. The Insufficiency of Law Plato and legal positivists may have doubts about the The determination of Jewish law as sufficient or empirical independence of law and ethics, but talmudic merely necessary for ideal Jewish living is substan- rabbis did not. Evidently they understood that law nei- tive, containing crucial implications for halakhic ther defines ethical categories (the stronger positivist claim), nor does legal compliance satisfy ideal moral orientation, moral experience and the quality of standards (the weaker claim).