1

YESHIVAT HAR ETZION

ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
*********************************************************

PHILOSOPHY OF HALAKHA
By Rav Chaim Navon

Lecture #1a: The Role of Halakha in Religious Life

In this opening lecture, I shall address a topic that troubles many people today: Why do we need Halakha?
What role does Halakha play in our spiritual life?

A. THE ARGUMENTS AGAINST HALAKHA

Halakha is Judaism's most unique characteristic. It appears to be the only aspect of Judaism that is totally
unique to it and clearly distinguishes it from all other religions. No other religion has laws that relate to all the
various aspects of man's life and direct him to religiously desirable behavior. It is no wonder, then, that over the
years Halakha has been the target of intense criticism from other religions. We shall, therefore, begin our discussion
of Halakha's role in the worship of God with a brief review of the criticisms leveled against Halakha by members of
other religions.

The first to mount an attack against Halakha was Saul of Tarsus, otherwise known as Paul, the founder of
institutionalized Christianity. Paul was born a Jew, but it was he who transformed Christianity from a marginal Jewish
sect into an expanding, universalistic religion. Paul's assault upon Halakha is one of the most prominent features in
his teachings. Paul emphasized the importance of inner faith, as opposed to outward behavior. He condemned
Halakha for its focus on the concrete act. He asserted that the essential component of religious life is the spirit and
faith, and not the physical deed.

This critique has been leveled against Halakha time and again, and we are forced to confront it. Why is
Halakha so concrete, dealing to such a great extent with practical matters? Why is Halakha so petty, determining
how we must perform each and every tiny and insignificant act?

Paul's point of view, condemning the way the Torah relates to concrete acts as opposed to simple faith,
deeply penetrated Christian thought. But it was the philosopher Baruch Spinoza, a Jew by birth, who expanded upon
this point:

"So, too, the command not to commit adultery is given merely with reference to the welfare of
the state; for if the moral doctrine had been intended, with reference not only to the welfare of
the state, but also to the tranquility and blessedness of the individual, Moses would have
condemned not merely the outward act, but also the mental acquiescence, as is done by Christ,
who taught only universal moral precepts, and for this cause promises a spiritual instead of a
temporal reward." (Theological-Political Treatise, ch. 5)

Spinoza argues that Halakha is not a body of religious-spiritual laws, but merely a political constitution. This
is because Halakha focuses on concrete deeds; it strives to correct man's deeds, but not his spirit. Following in
Spinoza's footsteps, the German philosopher Immanuel Kant sounded similar arguments:

"The Jewish faith was, in its original form, a collection of mere statutory laws upon which was
established a political organization … all its commands are of the kind which a political
organization can insist upon and lay down as coercive laws, since they relate merely to external
acts." (Religion within the Limits of Reason Alone, book III)

How are we to respond to the arguments posed by these theologians and philosophers? Why is Halakha
constructed as it is? In this lecture, we shall try to answer these questions.

B. FEAR IN THE WORSHIP OF GOD

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There are two basic approaches to the service of God: love and fear. We are not dealing here merely with
two different emotions between which one may alternate, but with two entirely different approaches to religious
life. The approach of love sets as it ultimate goal intimacy with God and communion with Him. In contrast, the
approach of fear views the service of God itself as the religious person's mission. One who chooses the path of love
aspires to draw close to God and unite with Him. One who opts for the path of fear claims that man cannot become
one with God, for God is distant and lofty. All that man can do is serve God, that is, observe His commandments,
here in this world, without ever achieving intimacy with Him.

An example of the confrontation between these two approaches is found in the sixth chapter of Rambam's
commentary to Tractate Avot ("The Eight Chapters"). Rambam deals there with the question of who is greater: one
who is naturally inclined to observe the commandments ("the perfect saint") or one who is drawn towards sin and
must constantly overcome his evil inclination ("one who rules over his evil inclination"). A "God-loving" man will
clearly prefer the perfect saint, whose personality is more perfect and, therefore, closer to God, while the
"God-fearing" man will have greater esteem for one who rules over his evil inclination, one who must work harder
and invest greater effort in his worship of God. Obviously, we are not dealing with two extreme approaches that
cannot be bridged, but with two poles between which we must find the proper path.

Halakha is the most prominent actualization of the approach of fear. Halakha compels man to comply with
the Divine command, irrespective of his own volition or personal inclinations. When man contents himself with
doing what appears right to him, he serves not God, but himself. Only when he commits himself to the absolute and
unequivocal law of God can we be confident that he has subjected and committed himself to His service.

Chazal have stated: "He who is commanded and does [a mitzva] is greater than he who is not commanded
and does [a mitzva]" (Bava Kama 38a). That is to say, he who performs God's bidding because he is commanded to
do so is greater than he who does so of his own free will. Many have found this assertion bewildering. Surely, on the
face of it, one who fulfills the Creator's will only because he is bound to do so is inferior to one who does so of his
own free will, out of his love for God. This is analogous to a child who washes the dishes only because his mother
asked him to do so. He will be praised far less than the child who volunteers to wash the dishes in order to help his
tired mother.

To the God-fearing man, however, it is clear, almost self-evident: "he who is commanded and does [a
mitzva]" does so because he is commanded to do so, fulfilling thereby the highest level of Divine service. He stands
in sharp contrast to "one who is not commanded, but does [a mitzva]." Such a person fulfills God's word only
because he thinks it is right to do so, because he likes the mitzva or feels that it suits him.

Chazal relate that before the Holy One, blessed be He, gave the Torah to Israel, He offered it to all the other
nations, but they refused to accept it:

"'The Lord came from Sinai, and rose up from Se'ir to them; He shone forth from Mount Paran'
(Devarim 33:2). He first went to [the descendants of] Esav in Mount Se'ir, [and] said to them: 'Will
you accept the Torah?' They asked Him: 'What is written therein?' He said to them: 'You shall not
kill,' and they refused to accept it. They said to Him: 'This is the blessing which we received from
our forefather: "You shall live by your sword." We cannot survive without it.' And so they did not
accept it.
God [then] went to the Paran desert to the descendants of Yishma'el. He said to them: 'Will you
accept the Torah?' They asked Him: 'What is written therein?' He said to them: 'You shall not
steal.' They said to Him: 'This is the inheritance received from our forefathers: "His hand will be
against every man, and every man's hand against him." We can not survive without it.' And so
they did not accept it. …
God [then] went to Israel and asked them: 'Will you accept the Torah?' They said to Him: 'Yes,
yes; Whatever God has spoken, we shall do and listen.'" (Eikha Rabba [ed. Buber], parasha 3)

The other nations' mistake lay not in their ultimate refusal to receive the Torah. Their mistake was in their
question, "What is written therein?" That is, they refused to accept the Torah without conditions; from the very
outset, they intended to take only those elements that pleased them. This is the essential point, as is clearly evident
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when we compare those other nations with Israel, who accepted the Torah without first clarifying its contents: "We
shall do and listen." Man accepts upon himself the burden of serving God, regardless of his own wishes and
inclinations. This is the greatness of Halakha, which obligates man to actualize his worship of God through the
approach of fear and fulfill even those laws that do not appeal to him. "He who is commanded and does is greater."

Chazal interpreted the expression found in Shir Ha-shirim 7:3, "suga ba-shoshanim" (lit., "set about with
lilies") as relating to the words of the Torah, "which are soft like lilies."

"The way of the world is that a man marries a woman when he is thirty or forty years old.
Following the expenditures [of the wedding], he immediately goes in and has relations with her.
But when she says to him, 'I saw [blood] like a red lily,' he immediately withdraws from her. Who
prevents him from drawing close to her? What iron wall or pillar stands between them? What
snake bit him, what scorpion stung him so that he does not approach her? [It is] the words of the
Torah, which are as soft as a lily, as the verse states: 'You shall not approach a woman in the
impurity of her menstrual flow.'" (Shir Ha-shirim Rabba 7:3)

This wonderful midrash emphasizes the heroic and courageous behavior of the God-fearing person, who
subjugates his own inclinations, desires, and aspirations to the commands of the Creator. The young groom who
withdraws from his wife on their wedding night must certainly find it difficult to fully and internally identify with the
prohibition and observe it with joy and enthusiasm. When the groom retreats in the dark of night where nobody can
see him, forgoing intimacy with his bride, the love of his heart, he is guided by his absolute commitment to the
Master of the Universe, and not by his love and yearning for Him. Withdrawal, restraint, and total self-control
characterize the life of the God-fearing person. It is here that the true servant of God reveals himself, he who
conquers his desires and bends them to the eternal will of his Creator.

Avraham Avinu was commanded to sacrifice his son Yitzchak to God, the son for whom he had waited so
many years. How many emotional and moral obstacles must this dreadful command have placed in Avraham's path!
He was commanded to kill another human being; he was asked to suppress the compassion he felt for his only son,
whom he loved so dearly; he was expected to forgo the vision that had been implanted in his mind, the wonderful
vision of "To your seed will I give this land." In a single moment, he was to turn from a proud and happy father, from
a person noted for his charity and love for his fellow man, into a broken utensil, despicable and despised by all.

Nevertheless, Avraham did not hesitate for a moment; he rose early in the morning to do the will of his
Creator. To the God-fearing man, Avraham symbolizes the true servant of God, who, for the sake of the Holy One,
blessed be He, is willing to sacrifice all that he has – his dreams, his desires, his feelings.

Avraham was, indeed, found worthy. After withstanding the awesome trial of the Akeda, his Creator
proclaimed about him: "For now I know that you fear God" (Bereishit 22:12).

Rabbi Akiva is known as the archetype of Jewish martyrdom. Countless thousands followed in Rabbi Akiva's
footsteps, offering their lives in martyrdom with the words of the Shema on their lips. We can understand why Rabbi
Akiva may have chosen to recite the Shema as he offered himself for martyrdom. Surely there is no holier or nobler
utterance. This, however, is not what the Gemara tells us:

"When Rabbi Akiva was being led out for execution, it was time to recite the Shema. As [the
Romans] were combing his flesh with iron combs, [Rabbi Akiva] accepted upon himself the yoke
of Heaven.
His disciples said to him: 'O master, to this extent?!'
He said to them: 'All my life I was distressed by this verse, "[You shall love the Lord your God…]
with all your soul" – even if He takes your soul. I asked myself when I would have the opportunity
to fulfill this. Now that the opportunity has arrived, I should not fulfill it?'
He protracted the word 'one' [in the phrase, 'God is one'], so that his soul departed on that word.
A heavenly voice issued forth, saying: 'Happy is Rabbi Akiva, whose soul departed on the word
one.'" (Berakhot 61b)
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Rabbi Akiva recited the Shema not because he was taken by its spiritual force and deemed it fitting for the
occasion, but because "it was time to recite the Shema." Rabbi Akiva, the greatest halakhic sage, recognized and
understood the way of Halakha. He reached the pinnacle of his life not in a dramatic outburst, but in silent
submission to God's authority through the fulfillment of Halakha under all circumstances and in every situation.
Rabbi Akiva proved his total devotion to the Holy One, blessed be He, not by choosing a dramatic and exhilarating
passage, but by continuing to bear the constant and eternal yoke of Halakha. This is the loftiest expression of Jewish
heroism.

Next week we shall explore a further reason for the centrality of Halakha: its effect on conduct.

(Translated by Rav David Strauss)

YESHIVAT HAR ETZION

ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
*********************************************************

PHILOSOPHY OF HALAKHA
By Rav Chaim Navon

Lecture #1b: The Role of Halakha in Religious Life

In last week's lecture, we began to answer the critics of Halakha by exploring one reason for its centrality in
Judaism, namely, the importance of "fear of God" and not just "love of God." This week, we shall examine an
additional reason for the practical and concrete approach of Jewish Law.

C. HALAKHA PRESERVES PROPER CONDUCT

The value of Halakha does not stem only from the ideological priority assigned to the approach of "fear of
God." Halakha is important because it alone can set the worship of God on firm foundations.

Feelings by themselves are incapable of molding a personality that will remain constant in its devotion to the
service of God for an extended period of time. Love of God, the desire to draw near to Him, the yearning to absorb
the warmth of His light – all these are conditioned upon a mental state and dependent upon time, atmosphere, and
individual personality. Today, my entire body trembles as I stand in prayer before the Holy One, blessed be He – but
tomorrow I yawn, look at my watch, and begin to remove my tefillin while reciting "Aleinu." The longing for God,
which moves the God-loving person and stirs his soul, is certainly very impressive and has great intensity.
Unfortunately, however, it is all too often fleeting, leaving no mark.

That which spontaneous feeling and excitement are incapable of doing, fixed law can accomplish. Only fixed
laws, packed with details, solid and binding, can dictate the desired path of conduct for an extended period of time.
Fixed commands, which shape man's agenda, effect his personality and improve it. Many people ask why Halakha
obligates a person to pray: would it not have been preferable to leave an area that is so emotional and internal
within the bounds of the voluntary? To them we say that even today one is permitted to offer a voluntary prayer; yet
how often does it happen that a person bursts out in spontaneous prayer from the depths of his heart? Were prayer
conditioned on the good will of man, we would all pray far, far less.

We are not dealing here with the fact that Halakha embodies one particular approach to the worship of God,
but rather with Halakha's capacity to serve as an educational tool for every approach to Divine service. Even excited
emotions and perfected character traits can be implanted in man's personality only through the force of Halakha.

One who reflects upon Jewish history will be hard pressed to find an instance where spontaneous feeling
was capable of establishing a stable and firmly based relationship between the Creator of the Universe and His
children. The amazing experience of the Revelation at Mount Sinai did not prevent the people of Israel from
committing the terrible sin of the Golden Calf immediately thereafter. When the Holy One, blessed be He, tells
Moshe about the sin of the Calf, He angrily says to him: "They have turned aside quickly out of the way which I
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commanded them; they have made them a molten calf" (Shemot 32:8). In this context, the expression, "they have
turned aside quickly," is rather restrained, a blatant understatement. "With lightning speed" would have been more
precise. Less than a month and a half after the Revelation at Sinai, the people of Israel already violated the
prohibition of "You shall not make for yourself any carved idol, or any likeness."

Let us not underestimate the significance of the sin; we are certainly dealing with a sin of awesome gravity,
one which God saw as sufficient cause for the annihilation of the entire people. And this sin was committed while
the people of Israel were still camping at the foot of the mountain upon which, only a few weeks earlier, God had
revealed Himself to them in fire and in a cloud, amidst thunder and lightning. The people's enthusiasm dampened,
and their commitment to the worship of God disappeared along with it.

Generations later, the prophet Eliyahu orchestrated a magnificent display of the sanctification of God's name
on Mount Carmel. The scene ended when the entire people, witnessing in astonishment fire coming down from
heaven, cried out their allegiance to God in pure and absolute faith.

"And it came to pass, at the time of the offering of the evening sacrifice, that Eliyahu the prophet
came near, and said: 'Lord God of Avraham, Yitzchak, and of Yisrael, let it be known this day that
You are God in Israel, and that I am Your servant, and that I have done all these thing at Your
word. Hear me, O Lord, hear me, that this people may know that You are the Lord God, and that
You have turned their heart back again.'
Then the fire of the Lord fell, and consumed the burnt sacrifice, and the wood pile, and the
stones, and the dust, and licked up the water that was in the trench. And when all the people saw
it, they fell on their faces and they said, 'The Lord, He is the God; the Lord, He is the God.'" (I
Melakhim 18:36-39)

One would have thought that all those who had been present on that occasion must immediately have
turned into sworn believers, hurrying back home to check their mezuzot, kasher their dishes, and buy woolen tzitit
satisfying the requirements of the Chazon Ish. Scripture, however, tells us what actually transpired:

"Achav told Izevel all that Eliyahu had done, and how he had slain all the prophets with the
sword. Then Izevel sent a messenger to Eliyahu, saying, 'So let the gods do to me, and more also,
if I make not your life as the life of one of them by tomorrow about this time.'
When he saw that, he arose, and fled for his life, and came to Be'er Sheva, which belongs to
Yehuda, and left his servant there. But he himself went a day's journey into the wilderness, and
came and sat down under a broom tree; and he requested for himself that he might die; and said,
'It is enough; now, O Lord, take away my life; for I am not better than my fathers.'" (I Melakhim
19:1-4)

Eliyahu realized that he had failed to educate his people. Everyone had returned to his own vineyard and
field, everything went back to the way it was, with nothing remaining from that amazing scene, except (perhaps) an
exciting memory, that those who had been present would one day share with their astonished grandchildren.
Idolatry was not eradicated from the land, the priests of Ba'al who had been put to death were replaced by others,
and Eliyahu himself was still in hiding, fearing Izevel's revenge.

What was Eliyahu's mistake? Why did that amazing display on Mount Carmel fail to restore the people's
hearts to their God? The Holy One, blessed be He, revealed Himself to Eliyahu, and explained to him where he went
wrong:

"He came there to a cave, and lodged there; and, behold, the word of the Lord came to him, and
He said to him, 'What are you doing here, Eliyahu?'
He answered, 'I have been very zealous for the Lord God of hosts: for the children of Israel have
forsaken Your covenant, thrown down Your altars, and slain Your prophets with the sword; and I
alone am left; and they seek my life, to take it away.'
He said, 'Go out, and stand upon the mountain before the Lord.' And, behold, the Lord passed by,
and a great and strong wind rent the mountains, and broke the rocks in pieces before the Lord;
but the Lord was not in the wind. And after the wind an earthquake; but the Lord was not in the
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earthquake. And after the earthquake a fire; but the Lord was not in the fire. And after the fire, a
still, small voice." (I Melakhim 19:9-12)

"The Lord was not in the earthquake" (v. 11). A one-time excitement, strong and exhilarating as it may be,
cannot establish a true commitment to the word of God. This can be effected only through "a still small voice" (v.
12): through quiet and constant effort, far away from the cameras and the microphones, an endeavor that lacks
thrilling drama, but is filled with true, unconditional commitment.

Stable and firmly established worship of God does not follow from an experience that today penetrates the
personality and shakes it up, but tomorrow disappears. The First Temple period was replete with prophets and
miracle workers; overt miracles took place at every step. Reading the books of the Early Prophets, one may think
that someone who walked the streets of Jerusalem during that period would have had to take constant precautions
against stones falling from heaven, against sudden rain in the middle of August, against flocks of winged serpents,
and other supernatural wonders. Not to mention the Temple itself: it is difficult to imagine the feelings of those
assembled in the Temple courtyard, when the crimson-colored string would suddenly turn white on the very day of
Yom Kippur. All this notwithstanding, idolatry remained deeply rooted among the members of God's people, and
none of the stirring miracles and wonders succeeded in eliminating it.

During the Second Temple period, on the other hand, prophecy ceased and miracles were lacking. At the
same time, however, the world of theoretical and practical Halakha greatly developed. It is precisely that period that
was generally characterized by great devotion to God and His commandments, by devotion to God that sometimes
even expressed itself literally through martyrdom. The heretical questioning of the authenticity of the Oral Law on
the part of the Sadducees during the second Temple period cannot be compared to the worship of Ba'al and Ashera,
which was so frequent during the days of the First Temple. The famous eighteenth-century English historian, Edward
Gibbon, already noted this difference:

"But the devout and even scrupulous attachment to the Mosaic religion, so conspicuous among
the Jews who lived under the Second Temple, becomes still more surprising, if it is compared with
the stubborn incredulity of their forefathers. When the law was given in thunder from Mount
Sinai, when the tides of the ocean and the course of the planets were suspended for the
convenience of the Israelites, and when temporal rewards and punishments were the immediate
consequences of their piety or disobedience, they perpetually relapsed into rebellion against the
visible majesty of their Divine King, placed the idols of the nations in the sanctuary of God, and
imitated every fantastic ceremony that was practiced in the tents of the Arabs, or in the cities of
Phoenicia. As the protection of Heaven was deservedly withdrawn from the ungrateful race, their
faith acquired a proportionable degree of vigor and purity." (The History of the Decline and Fall of
the Roman Empire, vol. 1)

This devoutly religious Christian historian finds this strange phenomenon astonishing. He does not consider
the possibility that it was Halakha that brought about this peculiar transformation in the character of the Jewish
people. Here, too, we see that the practical mitzvot lead to Divine worship that is far more stable and rooted than
that which follows in the wake of momentary emotional elation.

During the early years of the State of Israel, Yom Ha-atzma'ut was marked by spontaneous celebrations that
erupted on every corner. We have all seen the faded black and white photographs and the old film reels recording
the exuberant dancing in the streets of young Tel-Aviv. But that joy was never fixed in a binding format. And so, in
just a few short years – a much shorter period of time than has passed, for example, since the miracle of Chanuka –
the spontaneous celebrations have been transformed into staged demonstrations of joy. Even the singers specially
flown in from overseas, and even the clamorous sound equipment that they bring with them, are often unable to
instill the bored audience with a holiday spirit.

Here is the answer to all those who have such difficulty understanding the necessity for all the precise details
of the commandments which so characterize the Jewish holidays. Only a detailed system of unequivocal
commandments can implant the desired consciousness in one who performs the mitzvot. The choice lies between
"the laws of the Seder" – including the regulations concerning sizes and times (e.g. ke-zayit and bikhdei akhilat peras)
– and the loud performances, the crowds, and the artificial rejoicing of Yom Ha-atzama'ut. There is no middle road.
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The Shulchan Arukh, the most widely accepted and influential code of law in the Jewish world, opens with a
moving demand:

"One should strengthen himself like a lion to get up in the morning for the service of his Creator.
He should rise early enough to usher in the dawn." (OC 1:1)

Rema, however, immediately adds:

"One should at any rate not get up too late to pray the morning prayer service at the time that
the community prays it." (Ibid.)

Rema brings down the excitement and intensity of the preceding sentences to the plane of reality. Not every
person wakes up in the morning filled with enthusiasm and vigor; one can say with reasonable certainty that most
people get up in the morning more like a cat than like a lion. It is, therefore, fitting to establish clear and unequivocal
guidelines that do not depend upon the good will and enthusiasm of the individual. Rema's dry and prosaic attitude
is a bit disappointing after the poetic tempest of the Shulchan Arukh, but his words seem to be more meaningful to
most people who get up in the morning to pray.

This is the way of Halakha, the Divine command: meticulous concern with well-defined and finely-detailed
laws, with all their branches and particulars, and unconcealed skepticism about religious feeling that is not firmly
fixed in absolute definitions and measurements. Rabbi Joseph B. Soloveitchik once said that if Halakha would have a
mitzva to prepare a holiday-tree, many chapters in the Shulchan Arukh would be devoted to a clarification of its
precise form, the number of branches, who is bound by the obligation and who is exempt, where the presents may
be hung, if at all, and other precisely formulated particulars. Halakha does not rely on the good will and emotional
identification of man. Thousands of years of history have proven over and over again that Halakha's skepticism is
justified.

In conclusion, it seems fitting to cite the irreligious poet, Chayyim Nachman Bialik, regarding the relationship
between Halakha and Aggada, between stable commitment and the stormy emotion of love:

"A kind of voluntary Judaism is being created. People call out in the name of nationalism, rebirth,
literature, art, Hebrew education, Hebrew thought, Hebrew labor. All these things hang by the
hair of some love: love of the land, love of the language, love of literature. What is the price of
airy love?
Love [chibba]? – But where is the obligation [chova]? Where does it come from? Upon what does
it draw? From the Aggada? By its very nature, Aggada relates to the optional; it is weak in saying
'yes' or 'no'…
Aspiration of the heart, good will, excitement of the spirit, internal love – all these are good and
beneficial when they lead to action, action that is hard as iron, cruel obligation …
Come give us mitzvot!" ("Halakha Ve-aggada")

(Translated by Rav David Strauss)

YESHIVAT HAR ETZION

ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
*********************************************************

PHILOSOPHY OF HALAKHA
By Rav Chaim Navon

Lecture #2: Halakha and Custom

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As is well known, Halakha attaches great significance to custom. Many halakhic authorities regard general
custom as a crucial factor when they come to decide Halakha. In this lecture, we shall investigate the source of the
legal authority of custom. Why are we obligated to follow custom? Jewish customs were certainly not given at Sinai,
as were the mitzvot of the Torah, nor did they issue from the mouth of God. Why, then, are they endowed with
binding force?

A. THE VALIDITY OF CUSTOM DERIVES FROM HALAKHA

According to one approach – conceptually, perhaps, the simplest – the validity of custom derives from
Halakha itself. With regard to customs pertaining to Choshen Mishpat, i.e., civil law, the matter is simple: the
halakhic validity of general custom stems from the fact that, presumably, the two parties to the transaction agreed
to be bound by that custom. Halakha states that in civil matters, "a person may make stipulations on what is written
in the Torah," or one may contract agreements outside the parameters of what is laid down by the Torah. In other
words, the two parties may determine for themselves the business model that they wish to follow. For example, a
person may accept a bailment under conditions different from those mentioned in Halakha. If two people, therefore,
agree that the one will buy a car from the other, and according to local custom, the buyer bears the cost of having
the car tested, this too is implicit in their agreement. Thus, we understand why custom is binding in civil matters.

The problem arises with regard to customs pertaining to other areas of Halakha. Even in these areas,
however, the simplest approach is that the validity of custom is based upon clear halakhic foundations.

1. CUSTOM REFLECTS ANCIENT HALAKHA

R. Yitzchak Alfasi (Rif) argues that the force of custom stems from the fact that custom reflects an ancient
takkana (enactment).

"This is the source of customs that we follow: a majority of the community consults with the
elders of the community, and they enact a takkana as they decide, and observe it. This is custom.
Even after many years, when they no longer remember the source, as long as it had been
maintained, it stands on its presumption." (Responsa Rif, no. 11)

According to Rif, the validity of a custom stems from the fact that we presume that the custom reflects a
takkana enacted by the community in accordance with the strict halakhic criteria for enacting takkanot. A custom is
an enactment whose rationale has been forgotten, and we continue to observe it only because we presume that
when it had been first established, it was a valid halakhic takkana.

R. Asher ben Yechiel (Rosh) writes in a similar vein:

"Where Halakha wavers in your hand, follow custom. This means: If there is vacillation regarding
the law, it being unclear to you according to whom the Halakha was decided, and you see that
people conduct themselves [in a certain way] – follow the custom, for one may presume that the
authorities who established the custom thought that this was the law." (Responsa Rosh, no. 55,
sec. 10)

Like Rif before him, Rosh also argues that the validity of a custom stems from the fact that we assume that it
reflects ancient Halakha. Rif presumes that custom reflects an ancient takkana, whereas Rosh presumes that it
reflects an earlier determination of a law that had been the subject of a difference of opinion. Rosh narrows the area
in which custom has force. Even according to Rif, however, we appear to be dealing with a rather limited area:
custom is only binding in an area where a takkana would be relevant. Both seem to agree that there is no room to
speak of custom in an area that is clearly non-halakhic, e.g., the color of the ark-covering used on the High Holidays,
 9
or the apple dipped in honey eaten on Rosh Ha-shana. It should be pointed out that this approach is quite prevalent
among the Acharonim.[1]

2. CUSTOM AS A VOW
The Chatam Sofer raises another possibility regarding the source of the validity of custom. He too bases
custom on clear halakhic foundations.

"The Sages attached great importance to this custom [= the second day of Yom Tov observed in
the Diaspora], for it is indeed great. How great is the force of this custom, that we say in Kiddush,
'this festival of Atzeret,' and similarly in the Amida prayer … Would it be a light matter for our
Rabbis, the Tosafists, to mention falsely, 'this festival,' unless this custom were strong and
severe?
I am close to saying that it involves a Torah prohibition, created through a vow taken by the
community and spreading to all of Israel. All the leniencies regarding its observance and the
punishment [for its violation] … are due to the fact that, from the outset, they accepted [the
custom] as a Rabbinic prohibition. But that which they accepted, and the manner in which they
accepted it, involves the Torah prohibition, 'He shall not break his word' (Bamidbar 30:3).
Acceptance [of the custom] is regarded as a vow…
I have spoken about this at length because, as a result of our many sins, the lawless in our nation
have now grown in number. They present a false vision, ridiculing the second day of Yom Tov,
that it is merely a custom. They do not wish to follow in the footsteps of the Sages of Israel; they
speak against their own lives; they know not, nor do they understand; they walk on in darkness."
(Responsa Chatam Sofer I, OC, no. 145)

The Chatam Sofer argues that a custom has the force of a vow that is binding by Torah law: once the
members of a community observe a custom, it is regarded as if they had accepted it upon themselves by way of a
vow. He, too, finds the source of custom's validity in Halakha, though obviously in a manner very different from that
of Rif and Rosh. It should be pointed out that the Chatam Sofer's assertion that the violation of a custom involves a
breach of a Biblical vow is a bit extreme. He himself testifies that his ruling was issued in the context of his public
struggle with the proponents of religious reform, who treated custom with disdain.

3. SOCIAL CONSIDERATIONS
We have seen that the Chatam Sofer may have been influenced by social considerations. There is, however,
another authority who was quite explicit in relating to such considerations in this connection:

"No established custom should be changed … This is the Torah of the perfect man, to hold fast to
the deeds of his fathers, without deviating to the right or the left. For were every individual to
rely on his own discretion and judgment, instituting practices as he sees fit, without regard to
those who came before him – one custom would be abolished today, a second tomorrow, and
similarly the next day. All customs would disappear, and a new Torah would be established in
every generation. This would spread even to matters that people treated as forbidden following
the Torah authorities of their day. One transgression would lead to another." (R. Chayyim Palagi,
Masa Chayyim, Minhagim, no. 213)
 10

R. Chayyim Palagi (Turkey, 19th century) understood the social dynamics that custom creates. A person who
treats customs with disdain will come to scorn the mitzvot proper as well. He too maintains that the validity of
custom stems from Halakha, but in a different sense: observance of custom acts as a social guarantee for the
observance of Halakha.

This argument should not be treated lightly. A society that honors its deeply rooted customs, even when in
and of themselves they appear to lack all rationale, instills in its members a respect for tradition, as well as the sense
that they still have much to learn. People often tend to despise, with no apparent justification, anything that was
created in the past. Faced with the choice between unfounded scorn for the past and unjustified respect, I would opt
for unjustified respect.

According to all three views that have been mentioned, the validity of custom stems from Halakha. Clearly,
then, according to the proponents of these theories, there is no room to consider customs that are contrary to
Halakha:

"You also wrote that one should not deviate from accepted custom because of what people may
say. The word minhag (m-n-h-g, 'custom'), however, is the same as Gehinom (g-h-n-m) spelled
backwards. For if fools acted in a certain manner, the Sages did not do so. Even a fitting custom
does not override the law, unless the law is in doubt." (Responsa of the Ba'alei Ha-tosafot, no. 14,
in the name of Rabbenu Tam)

B. CUSTOM AS THE JEWISH WAY OF LIFE

In contrast to the aforementioned views, which see Halakha as the source of custom's validity, other
approaches emphasize the independent value of custom as an expression of the Jewish way of life. This is what Rav
Hai Gaon, for example, wrote in a classic ruling.

Rav Hai was asked about a custom pertaining to the blowing of the shofar on Rosh Ha-shana. In Rav Hai's
day, and for a long time afterwards, it was customary to blow a single TShRT (tekiya, shevarim, teru'a, tekiya) during
the Malkhuyot blessing, a single TShT (tekiya, shevarim, tekiya) during the Zikhronot blessing, and a single TRT
(tekiya, teru'a, tekiya) during the Shofarot blessing, or in other words, a sum total of ten shofar blasts during the
Amida. This custom seems to contradict halakhic logic, for the TShRT, TShT, and TRT combinations represent three
alternatives for the teru'a blast, only one of which can be correct. It would appear, therefore, that in order to
properly fulfill one's obligation, one would have to blow each alternative three times.[2] Rav Hai addresses this
difficulty:

"The way we fulfill our obligation and perform the will of our Creator is correct and clear to us, a
three-fold inheritance, faithfully copied and transmitted from father to son, generation after
generation in Israel … The law has spread throughout all of Israel. And since we conduct ourselves
in this manner, it is correct and a law to Moshe at Sinai that we have already fulfilled our
obligation, so that any objection has already been removed.
One might argue: If TShT is correct, then surely TRT is null, and if TRT is correct, then TShRT is
null! Our response to him begins: How do we know that there is a mitzva to blow the shofar on
this day? And regarding the Written Torah itself, how do know that it is the Torah of Moshe
dictated to him by the Almighty? Surely it is on the word of the people of Israel who testify to it.
They also testify that we fulfill our obligation in this manner, and that thus they have received by
tradition from the prophets a law to Moshe at Sinai.
 11
What the community says serves as proof for the entire Mishna and the entire Gemara. More
than any other proof, go out and see what the people are doing. This is the essence and the basis.
Only afterwards do we consider all that was said in the Mishna or in the Gemara concerning the
matter. If whatever follows from them can be reconciled with our established practice, fine. And
if they contain anything that does not match what is in our hearts [i.e., what we practice] and
cannot be clarified with proof, it will not override the essential thing." (Rav Hai Gaon, Temim
De'im, 119)

Rav Hai then continues to explain why his customary manner of blowing the shofar does not contradict
halakhic logic. The essence of what he has to say (which some have understood in the context of Rav Hai's
anti-Karaite polemics), however, remains: objections raised against custom from the Talmudic passages are invalid,
for custom is the foundation and basis for Jewish practice. According to Rav Hai, Halakha does not give custom its
validity, but rather the testimony of the people of Israel is what validates Halakha. The essence, according to Rav Hai,
is not the written tradition of Halakha, but rather the living tradition of the Jewish way of life.

When Rav Hai argues that custom represents a tradition which is also "law given to Moshe at Sinai," he does
not mean to say that custom restores ancient Halakha. Rather, he means that just as the theoretical laws were
transmitted at Sinai, so too were the practical customs given there. The halakhic tradition is paralleled by a tradition
of custom, the latter superior to the former. Prof. Israel Ta-Shema has outlined this approach as follows:

"According to the point of view described above, 'practice' precedes 'law' not only in importance,
but in logic as well. This is not like the question, which came first – the chicken or the egg. For we
know with certainty that the practices existed first, and only later were the halakhot formulated.
The relationship between Halakha, that is to say, the Talmud, and actual conduct may thus be
compared to the relationship between the rules of grammar and a living language. Our ancestors
started with actual talk, and not with learning the grammatical rules, which are nothing but an a
posteriori description of 'standard' linguistic practice. Halakha is nothing but an attempt to
generalize in an abstract manner the wealth of diversified practices." (I. Ta-Shema, Minhag
Ashkenaz Ha-kadmon, p. 69)

A practical application of this approach may be found in the Talmud Yerushalmi:

"Were the prophet Eliyahu to come and say that chalitza may be performed with a shoe, we listen
to him. [But were he to come and say] that chalitza may not be performed with a sandal, we do
not listen to him. For it is the general practice to perform chalitza with a sandal, and custom
overrides Halakha." (Yerushalmi, Yevamot 12:1)

Modern scholars have already noted,[3] however, that in this instance there is no direct clash between
custom and Halakha, for the classical Halakha as it has come down to us correlates well with the common custom.
The Yerushalmi's formulation implies, however, that there are circumstances in which custom is, indeed, given
priority over Halakha. This position cannot be explained according to the approaches presented at the beginning of
this lecture. Indeed, this is the way the Jewish community living in Eretz Israel understand the Yerushalmi's position:
 12
"He [= Rav Yehudai Gaon] also sent a letter to Eretz Israel concerning … mitzvot regarding which
they conduct themselves in a manner that is contrary to Halakha, and in accordance with customs
they adopted during periods of persecution. But they rejected what he said, and sent him in
reply: Custom overrides Halakha." (Ginzei Shechter, II, p. 559)

According to the view that assigns priority to custom over Halakha, it is clear that custom is not restricted to
the realm of Halakha. According to this approach, we are not surprised to read the following:

"Halakha does not become fixed until it has become customary practice." (Tractate Soferim
14:16)

Upon this view, it is not Halakha that grants validity to custom, but rather custom that grants validity to Halakha.

Ideologically, how is it possible to justify the priority given to custom over Halakha? The justification may be
based on the fact that a practical tradition exists, handed down from one generation to the next, which relates to
actual practice as opposed to theoretical Halakha (as argued by Rav Hai Gaon). Alternatively, it may be argued that
the authority to decide halakhic issues was handed over to the Jewish people, perhaps because they have healthy
intuition, a developed spiritual sense, or even the holy spirit. This is what is implied in the words of Hillel:

"They said to him: 'O Master, what is the law if one forgot to bring the slaughtering knife on the
eve of the Sabbath?' He said to them: 'I received this Halakha, but have forgotten it. Leave it to
Israel. Even if they are not prophets, they are still the children of prophets.' The next day, he
whose paschal sacrifice was a lamb, stuck [the knife] in its wool, and he whose sacrifice was a
goat, stuck it between its horns. [Hillel] saw the act and recalled the Halakha, saying: 'Thus I have
received the tradition from Shemaya and Avtalyon.'" (Pesachim 66a)

Following Hillel, the author of the Yad Eliyahu wrote as follows:

"It is clear to us that the fact that all of Israel agree about a custom stems from the holy spirit. The
Holy One, blessed be He, appeared among them, and instituted the practice as if through a
prophet. For through their will and conduct that was directed to Heaven, God, may He be
blessed, illumines to all of Israel by way of the holy spirit how to behave." (Yad Eliyahu, pesakim,
no. 25)

Whatever the ideological justification may be, we are dealing here with an approach that prefers "way of
life" to "law." Such an approach perforce creates service of God that is based upon the Jewish people's way of life in
actual practice, rather than upon speculative Halakha.

It follows that this approach creates a way of serving God based upon intimacy rather than commitment,
upon love rather than fear. When a person performs a mitzva, he does not feel himself obeying a law that has been
forced upon him from Heaven. Rather, he sees himself as continuing the traditions of his forebears, as well as the
accepted way of life of his people and community. The more we view Halakha as absolute Divine law, as the
embodiment of the approach of fear in the worship of God – the less we will take customs into consideration, or else
we will explain our reliance on custom according to the approaches mentioned earlier, with the help of clear
halakhic considerations.
 13
The issue of the relationship between Halakha and custom is of great consequence regarding the way we
view Halakha. It is significant on the practical level as well. In this context, there are striking differences between the
different authorities. Across the generations, Sephardic authorities have assigned less importance to custom than
did their Ashkenazic counterparts. This distinction finds expression in our day as well. Rav Ovadia Yosef, for example,
assigns very little, if any, halakhic value to custom. It is difficult, however, to set iron-clad rules and distinguish
between Sephardim and Ashkenazim. The Vilna Gaon, for example, also assigned very little value to custom. Let each
person follow in the path of his forefathers.

(Translated by Rav David Strauss)

FOOTNOTES:

[1] Chatam Sofer, YD, 327; Iggerot Moshe, YD, I, 136; and elsewhere.

[2] It was on account of this weighty objection that Rabbenu Tam instituted the practice of blowing TShRT three
times. Our custom dates from a later period, when it was instituted – following the position of the Arukh – to blow
thirty blasts during the Amida. In that way, we fulfill our obligation according to all opinions.

[3] Menahem Elon, Ha-mishpat Ha-ivri, vol. 1, p. 736; see also I. Ta-Shema, Minhag Ashkenaz Ha-kadmon, p. 65.

YESHIVAT HAR ETZION

ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
*********************************************************

PHILOSOPHY OF HALAKHA
By Rav Chaim Navon

Lecture #3a: Halakha and Morality

DOES RELIGION RECOGNIZE THE EXISTENCE OF MORALITY?

The question concerning the relationship between Halakha and morality is a difficult one. The classic starting point
for all discussion regarding this question remains Plato's Dialogue, "Euthyphro:"

Socrates: Consider this question: Is what is pious loved by the gods because it is pious, or is it
pious because it is loved?
Euthyphro: I don't understand what you mean, Socrates.
Socrates: Well, I will try to explain more clearly.
(…)
Socrates: Is not piety, according to your definition, loved by all the gods?
Euthyphro: Yes.
Socrates: Just because it is pious, or for some other reason?
Euthyphro: No, because it is pious.
Socrates: So it is loved because it is pious, not pious because it is loved?

Plato raises here a fundamental question: Does a religious world-view leave room for morality and goodness as
independent standards by which to judge an action? Plato formulates the problem as follows: Does God desire good
because it is good, or is something good because God desires it? In other words, do good and evil exist
independently of God, and God chooses that which is good? Or perhaps there is no such thing as independent good,
and the term "good" merely represents that which God has arbitrarily chosen.
 14
According to the second possibility, there is no inherent difference between charity and murder. Neither act is
"good" or "evil" in and of itself. The sole difference between them is that God chose the one and not the other, but
He could just as well have chosen in the opposite manner.

This question has no simple answer from a religious perspective. On the one hand, it is difficult to say that good
exists independently of God's will, for essentially that would mean that God is subordinate to something outside of
Him. On the other hand, it is no less difficult to assert that a system of good and evil does not exist, or that God
charges us with arbitrary commands.

Both approaches find expression in Christianity and Islam. It is difficult, however, to point to a Jewish source that
adopts the second approach. I have not found a single Jewish thinker who argues that good and evil have no
existence apart from God's will. This may, perhaps, be due to the fact that already the book of Bereishit presents us
with an unequivocal stand on this issue in the dialogue between Avraham and God:

The Lord said, "Because the cry of Sedom and Amora is great, and because their sin is grievous; I
will go down now, and see whether they have done altogether according to the cry of it, which is
come to me; and if not, I will know." And the men turned their faces from there, and went toward
Sedom; but Avraham stood yet before the Lord.
Avraham drew near, and said, "Will You also destroy the righteous with the wicked? Perhaps
there are fifty righteous within the city; will You also destroy and not spare the place for the fifty
righteous that are therein? Far be it from You; shall not the Judge of all the earth do justice?"
The Lord said, "If I find in Sedom fifty just men within the city, then I will spare all the place for
their sakes." (Bereishit 18:20-26)

One cardinal point stands out in Avraham's exchange with God: Avraham assumes that God acts according to moral
criteria. Furthermore, he assumes that God's moral criteria are understandable to man. It would have been possible
to say that absolute standards of good and evil do in fact exist, but they are incomprehensible to man. Avraham,
however, does not accept such a position. Avraham approaches God with a moral claim: "Shall not the Judge of all
the earth do justice?" God accepts Avraham's argument. This appears to be the primary source for the Jewish
position that assumes the existence of an absolute moral good that is not determined arbitrarily by God.

A. MITZVOT AND MORALITY

A classic example of the Jewish point of view may be found in the words of Rambam. Rambam maintains that God's
will is moral and rational, and he applies this position to the realm of mitzvot as well. Rambam argues that God's
commandments are not arbitrary, but rather stem from reasoned moral rationales:

There is a group of human beings who consider it a grievous thing that reasons should be given
for any law; it would please them most if the intellect would not find a meaning for the
commandments and prohibitions. What compels them to feel thus is a sickness that they find in
their souls, a sickness to which they are unable to give utterance and of which they cannot furnish
a satisfactory account. For they think that if those laws were useful in this existence and had been
given to us for this or that reason, it would be as if they derived from the reflection and the
understanding of some intelligent being. If, however, there is a thing for which the intellect could
not find any meaning at all and that does not lead to something useful, it undoubtedly derives
from God; for the reflection of man would not lead to such a thing. It is as if, according to these
people of weak intellects, man were more perfect than his Maker; for man speaks and acts in a
manner that leads to some intended end, whereas the deity does not act thus, but rather
commands us to do things that are not useful to us and forbids us to do things that are not
harmful to us.
However, [in truth,] He is far exalted above this; the contrary is the case … as we have explained
on the basis of the Torah's dictum: "For our good always, that He might preserve us alive, as it is
this day" (Devarim 6:24). And it says: "Which shall hear all these statutes [chukkim] and say:
 15
Surely this great community is a wise and understanding people" (Devarim 4:6). Thus it states
explicitly that even all the statutes [chukkim, understood as mitzvot which seem to have no
rational reason] will show to all the nations that [all] the mitzvot have been given with wisdom
and understanding. Now, if there is a thing for which no reason is known and that does not either
procure something useful or ward off something harmful, why should one say of one who
believes in it or practices it that he is "wise and understanding" and of great worth? And why
should the religious communities think it a wonder?
Rather, things are indubitably as we have mentioned: every commandment from among these six
hundred and thirteen commandments exists either with a view to communicating a correct
opinion, or to putting an end to an unhealthy opinion, or to communicating a rule of justice, or to
warding off an injustice, or to endowing men with a noble moral quality, or to warning them
against an evil moral quality. (Guide of the Perplexed III:31)

Thus far, I have argued that, as a rule, Judaism recognizes the position of morality. We have seen that for Rambam
this determination is correct with regard to the mitzvot as well. Now let us examine the degree to which, in practice,
there is agreement between Halakha and the standards of human morality.

B. MITZVOT THAT APPEAR TO BE UNSATISFACTORY FROM A MORAL PERSPECTIVE

There are many mitzvot which easily can be reconciled with our standards of morality. These include most of the
social mitzvot, e.g., "You shall not steal" and "You shall love your neighbor as yourself." The problem begins with that
which morality demands but Halakha does not formally codify. How are we to relate to moral values and imperatives
that find no expression in the halakhic system?

My revered teacher, Rav Yehuda Amital, often cites the Responsa Dor Revi'i – written by a great-grandson of the
Chatam Sofer – regarding the prohibition to eat human flesh. Technically, it is merely an issur aseh – a prohibition
that is not stated in the Torah in the form of a negative commandment, but merely inferred from a positive
commandment. The moral taboo that accompanies it, however, gives it great weight:

Furthermore, you should know that as to all the loathsome things that man finds despicable, even
if the Torah had not forbidden them, anyone eating such things would be regarded as being far
more abhorrent than one who violates an explicit Torah prohibition …
According to Rambam, [the eating of] human flesh is forbidden only by way of an inference from
a positive commandment, and according to Rashba it is outright permitted by Torah law. But tell
me now, a mortally ill patient having to choose between meat from an improperly-slaughtered or
congenitally defective animal … and human flesh – which should he eat? Do we say that he should
eat the human flesh, which is not forbidden by a Torah prohibition – even though it is forbidden
by the moral code accepted by civilized man, so that anyone eating or feeding another person
human flesh is cast out from the community of men? [Is this to be preferred over] eating meat
that the Torah [explicitly] forbids with a negative commandment?
[Certainly, one should choose to eat non-kosher meat over consuming human flesh.] Would it
enter your mind that we, the chosen people, a "wise and understanding people," should violate
this moral code in order to save ourselves from violating a Torah prohibition? … Whatever is
abhorrent in the eyes of the enlightened nations is forbidden to us … by virtue of the
commandment, "You shall be holy." Whatever is forbidden to the entire species of enlightened
man by virtue of a moral code, cannot possibly be permitted to us, a holy people. (Introduction
to Dor Revi'i on Chullin)

What happens when someone finds himself alone in the desert, and all that is available is horsemeat and human
flesh? What should he eat? From a halakhic perspective, the prohibition of eating human flesh is surely the less
severe one. From an emotional perspective, and, perhaps, from a moral one as well, cannibalism seems far more
abhorrent to us. The auhor of Dor Revi'i argues that one should eat the horsemeat.
 16
This case is highly problematic, for it involves a moral claim that directly collides with a solid halakhic prohibition. We
may, however, derive from Dor Revi'i the following principle: even that which is not explicitly prohibited by the
Torah may be forbidden to us by virtue of a universal moral code. To illustrate this point, he cites the prohibition to
go out naked into the street. Is it possible that a man is forbidden to dress up in a woman's clothing (which is
explicitly prohibited in the Torah), but he is permitted to go about in public stark naked (which is not mentioned in
the Torah)? The author of Dor Revi'i bases these prohibitions on the general mitzva, "You shall be holy," which
Ramban explains – as is the case with the verse, "and you shall do what is righteous and good" – as relating to all the
fitting deeds that are not specifically spelled out in the Torah.

Rav Nissim Gaon relates to the seven commandments that are binding upon all the descendants of Noah, even
non-Jews, regarding whom there is no general command resembling that of "You shall be holy." He argues that all
human beings are bound by moral imperatives, even when there is no explicit Divine command. In the absence of
such a command, man's conscience can bring him to recognize God's will:

All the mitzvot that depend upon reason and the heart's understanding were already binding
upon all men from the day that God created man on earth … Even though these mitzvot (= the
seven commandments binding upon all the descendants of Noah) are derived from Scripture, as it
is written, "And the Lord God commanded" – they are not merely received commandments, for
the obligations to know God and obey and serve Him are fitting by way of the law of the intellect;
and the shedding of innocent blood and stealing are forbidden by virtue of the path of reason.
(Rav Nissim Gaon, introduction to Sefer Mafte'ach)

Thus far, we have discussed moral values that have no expression in Halakha. Another issue, very similar to this,
involves those mitzvot which appear to be directed toward the perfection of morals, but nonetheless do not seem to
satisfy our moral standards. The classic example is slavery. The Torah did not invent slavery, but neither did it negate
it. In this case, the Torah does not seem to live up to our moral standards.

Chazal already confronted this issue with respect to the law regarding a non-Jewish female prisoner of war (yefat
toar, Devarim 21:9-14). The Jewish soldier is allowed to take her as a wife, but only after allowing her to mourn, and
he may not sell her as a slave. Chazal assert that the mitzva has a moral objective. God would prefer that she not be
taken at all. Since, however, God understood that the Jewish people living in that generation would be unable to
observe an absolute prohibition, He was satisfied with various restrictions that would minimize the moral offense:

Our Sages have taught: "Of beautiful appearance" – [here] the Torah only speaks in consideration
of the evil inclination. It is better that Israel eat the flesh of animals on the point of death but
ritually slaughtered, rather than eat of carcasses unslaughtered. (Kiddushin 21b-22a)

Ramban understood that the problem with a female prisoner of war lies in the injury it causes to the sanctity of
Israel. Rambam, however, understood that we are dealing here with a moral issue:

This book also includes the law concerning the beautiful [captive] woman. You know their
dictum: "[Here] the Torah only speaks in consideration of the evil inclination" … Even though his
evil inclination overcomes him and patience is impossible for him, he must obligatorily bring her
to a hidden place … And as [the Sages] have explained, he is not permitted to do her violence
during the war. And he is not allowed sexual intercourse with her for the second time before her
grief has calmed down and her sorrow has been quieted. And she should not be forbidden to
grieve, to be disheveled, and to weep; as the text says: "And she shall bewail her father and her
mother," and so on. For those who grieve find solace in weeping and in arousing their sorrow
until their bodily forces are too tired to bear this affection … Therefore the Torah has had pity on
her and gave her the possibility to do so until she is weary of weeping and of grieving. (Guide of
the Perplexed III, 41)
 17
Rambam explains that the Torah took pity upon this unfortunate captive woman, but was unable to totally forbid the
injustice done to her. It therefore tried to minimize the damage to the extent possible. Chazal provide us with a key
to understand those mitzvot that do not appear to satisfy our moral standards. In many such instances, the Torah
aims to counteract the evil inclination, but it knows that it cannot totally dislodge deeply rooted social practices, but
only limit them as much as possible. In such cases, the Torah would certainly look favorably upon further developing
the goal of the mitzva, to the point of absolute negation of the moral injustice.

We shall continue next week with an examination of this problem in its most acute form: mitzvot that clearly seem
to contradict our moral standards.

(Translated by Rav David Strauss)

YESHIVAT HAR ETZION

ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
*********************************************************

PHILOSOPHY OF HALAKHA
By Rav Chaim Navon

Lecture #3b: Halakha and Morality

C. IMMORAL MITZVOT?

The problem of Halakha and morality arises in its most acute form with regard to mitzvot that clearly contradict our
moral standards. Our starting point must be that when a mitzva clearly contradicts our moral principles, we must,
without a doubt, follow the mitzva. Proof may be adduced from the story of the Akeida. The very same Avraham
who expected that God conduct Himself in a moral manner (with regard to the destruction of Sedom) was himself
prepared to execute an absolutely immoral Divine command (to sacrfice his son) without any protest or hesitation.
Our duty to God supersedes our duty to moral principles.

In general, however, we try to avoid such a situation. But from where do we derive the authority to fashion the
mitzvot in such a manner that they do not clash with morality? It seems that we may learn from the example
presented by Moshe Rabbenu:

And the Lord spoke to me, saying … "Behold, I have given into your hand Sichon the Emorite, king
of Cheshbon, and his land; begin to possess it, and contend with him in battle" … And I sent
messengers out of the wilderness of Kedemot to Sichon king of Cheshbon with words of peace,
saying… (Devarim 2:2-26)

God commanded Moshe to fight Sichon, and yet Moshe sent him messengers of peace. How did Moshe dare to
deviate from the instructions received directly from God? Rashi explains the matter as follows:

Although the Omnipresent had not commanded me to offer peace to Sichon, I learnt to do so
from what happened in the wilderness of Sinai, i.e., from an incident that relates to the Torah
which pre-existed the world. For when the Holy One, blessed be He, was about to give the Torah
to Israel, he took it round to Esav and Ishmael. It was manifest before Him that they would not
accept it, but yet He opened unto them with peace. Similarly, I first approached Sichon with
words of peace.
Another explanation: "From the wilderness of Kedemot" - Moses said to God, I learnt this from
You, who were in existence before the world. You could have sent one flash of lightning to burn
up the Egyptians, but You did send me from the wilderness to Pharaoh, to say, Let my people go.
(Rashi, ad loc., following Chazal)
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Chazal tell us why Moshe dared to veer from the simple meaning of God's instructions. When Moshe came to
interpret God's words, he took into consideration what he knew of God's moral nature. Indeed, according to the
plain meaning of what He said, God seems to have desired immediate engagement in battle. If, however, we
consider also the moral values to which God had already proven that He was devoted, we must interpret those
words differently: God apparently meant that, first of all, we must send Sichon words of peace, and only afterwards,
if there is no other alternative, we must go out in battle against him.[1] In such a case, the moral consideration does
not contradict God's word, God forbid, but rather it serves as an exegetical tool that may help us understand the
true will of God.

This principle is found many times in the words of Chazal. It should be emphasized once again: we are not dealing
here with a "show" or a perversion of God's word. We are using moral values as an exegetical tool, based on the
sincere belief that they can truly assist us in deciphering God's will. Obviously, there are also other exegetical
considerations which must be taken into account. Those considerations may sometimes overwhelm the moral
considerations, in which case we will find ourselves facing a mitzva that, in our eyes, contradicts morality. In such a
situation, we must prefer the mitzva to our moral principles, on the assumption that God understands better than us
what is good and what is fitting. In general, however, we try to the best of our ability to interpret the mitzvot in such
a manner that they correspond to the moral values reflected in the Torah, and which, in our opinion, reflect the will
of God.

Let us now consider a number of examples where moral values are treated as legitimate exegetical tools.

Mishna: The place of stoning [i.e., the platform off of which the criminal sentenced to death is to
be pushed, after which his body will be stoned] is twice the height of a man…

Gemara: [A Tanna] taught: "Including his height, it is three times the height of a man."
Why do we need it to be so high? A contradiction was raised: "Just as a pit that can kill [is] ten
handbreadths, so, too, all that can kill [are] ten handbreadths." [So let the platform be lower!]
Rav Nachman said in the name of Rabbah bar Avuha: The verse says: "Love your neighbor as
yourself" – select for him a humane death. If so, let us raise it more! Because he would become
mutilated. (Sanhedrin 45a)

The Gemara asks: why are those who are sentenced to stoning cast down from such a great height? Surely a drop of
ten handbreaths is enough to kill them! The Gemara answers that we want them to die immediately without
suffering. If so, why then do we not throw them off the Empire State Building? So that their bodies not become
mutilated. Moral and ethical considerations are treated here as exegetical tools to further our understanding of the
will of God with regard to punishments.

We find another example in Rav Baruch Epstein's interpretation of the famous law regarding "an eye for an eye":

"An eye for ['tachat'] an eye …" (Shemot 21:24). Even though it is possible to explain the word
"tachat" in its literal sense, Chazal decided to support the tradition that the verse refer here to
monetary compensation. For it may be said that Chazal understood the Torah's thinking, for "its
ways are pleasant," and the Torah cannot possibly have commanded something that will bring no
benefit to the community and only damage to the individual. This is not the case if we interpret
the word "tachat" as refering to money, for the injured party will at least receive monetary
compensation for the loss of his eye. (Torah Temima, ad loc., no. 171)

A third example is found in the commentary of Ibn Ezra, where he explains why it is clear that the command, "And
you shall circumcise the foreskin of your heart," is merely a metaphor:

… And the second kind are the mitzvot with hidden rationales, regarding which it was not stated
explicitly why they were commanded. Heaven forbid that one of those mitzvot should contradict
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sound reasoning. It is just that we are obligated to keep all that God has commanded us, whether
or not its secret has been revealed to us. If we should find that one of them contradicts sound
reasoning, it is not right that we should believe that it must be understood literally. Rather, we
must seek its rationale in the works of our Sages of blessed memory, to determine if it is to be
understood metaphorically. If we do not find this in writing, we should seek it ourselves and
search for it to the best of our abilities, and perhaps we can fix it. If we are unable to do so, we
should let it rest as is, and admit that we do not understand it. As in the case of "You shall
circumcise the foreskin of your heart" – did He cruelly command us to kill ourselves? (Ibn Ezra,
Shemot 20:1)

We see one final example of moral values serving as exegetical tools to help us understand God's will in the words of
Reb Chayyim of Volozhin, the father of the Lithuanian yeshiva world, regarding permission given to agunot to
remarry:

I see that regarding most things we are headed in the same direction. It is just that you incline
toward stringency, since the matter is not cast upon you. Just like you, I too did not turn to the
allowances that emerge from study before the burden of decision-making was placed upon my
shoulders. Now, however, as a result of our many sins, our environs have been orphaned of its
sages, and the yoke of ruling for the entire area was placed on my shoulders … And I calculated
with my Maker, and I saw it a personal obligation to gather all my strength in order to persevere
in finding a remedy for the agunot. (Responsa Chut Ha-meshulash I:8)

Reb Chayyim of Volozhin admits that according to dry, legal considerations, the unfortunate aguna should be
forbidden to remarry; due to moral considerations, however, he inclines toward leniency. There is no perversion
here or circumvention of God's will, but rather a genuine belief that moral considerations are also a factor when we
come to understand God's will.

We may be able to find an additional example, concealed and hidden, regarding a sensitive and problematic issue.
The Talmudic sage Daniel Hayyata expounded upon the problem of mamzerim as follows:

"So I returned, and considered all the oppressions that are done under the sun" (Kohelet 4:1).
Daniel Chayyata interpreted the verse in reference to mamzerim. "And behold the tears of such
as were oppressed" (ibid.) – their fathers violated prohibitions; why should these wretched
people care? If this one's father engaged in incest, in what way did the son sin, and why should he
care? "But they had no comforter," rather, "on the side of their oppressors there was power" –
from the hand of the Great Sanhedrin in Israel, who came to them by the power of the Torah, and
sent them away, on account of, "A mamzer shall not enter the community of the Lord." "But they
had no comforter" – the Holy One, blessed be He, said: It falls upon me to comfort them, for in
this world they contain chaff, but regarding the future Zekhariah said: I saw him comprised
entirely of pure gold. (Vayikra Rabba 32:8)

We have here a daring and revolutionary moral critique of the laws pertaining to mamzerim. It seems that it is
impossible to sever this moral outlook from various revolutionary and unprecedented elements found in the laws of
mamzerim.

Our Sages have taught: In the future mamzerim and netinim will be pure; these are the words of
Rabbi Yose. (Kiddushin 72b)

What is meant by: "That they may offer to the Lord an offering in righteousness"? Rabbi Yitzhak
said: The Holy One, blessed be He, acted charitably with Israel, for a family that became
assimilated has become assimilated. (Kiddushin 71a)
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The law that "a family that has become assimilated is assimilated" – that is to say, if a family of mamzerim became
mixed up in Israel, its legitimacy may not be contested – is unprecedented in Halakha. No one would think to say
that "a pig which has become assimilated is assimilated." It seems that we can identify here the considerations that,
as we saw above, were stated elsewhere explicitly. Moral considerations brought Chazal to try and minimize the
scope of the prohibitions pertaining to mamzerim as much as possible. On the other hand, we also see here that the
utilization of moral considerations as an exegetical tool is not unlimited and all-powerful. Chazal did not nullify the
laws of mamzerim that are mentioned explicitly in the Torah; they could only limit them.

I shall now bring yet another example of a Divine command which raises a moral problem that cannot be
circumvented.

When the Holy One, blessed be He, told Sha'ul to "Go and smite Amalek," he said: Now, if for a
single soul the Torah said to perform the rite of egla arufa [when innocent blood is shed], surely
this is so for all these souls. And if man sinned, how did the cattle sin? And if the adults sinned,
how did the children sin? A heavenly voice issued forth and said to him: "Be not overly righteous."
(Yoma 22b)

We shall not always – or perhaps almost never – succeed entirely in resolving the moral difficulties arising in
Halakha. But we are duty bound to walk in the paths of the Sages of Israel, and, at the very least, strive to minimize
as much as possible the clash between Halakha and morality.

(Translated by Rav David Strauss)

FOOTNOTE:

[1] As for Moshe and Sichon, one might argue that we are merely dealing here with a tactical maneuver for the
purpose of public relations, for it was clear that Sichon would not agree to peace. Chazal, however, seem to imply
otherwise: "Whatever Moshe decreed, the Holy One, blessed be He, approved. How so? The Holy One, blessed be
He, did not tell [Moshe] to break the tablets. Yet Moshe went and broke them on his own. From where do we know
that the Holy One, blessed be He, approved? For it says: 'Which (asher) you broke' – be thanked (yishar) for having
broken them. The Holy One, blessed be He, told him to wage war against Sichon, as it says: 'And contend with him in
battle.' But he did not do so. Rather, 'And I sent messengers, etc.' The Holy One, blessed be He, said to him: I told
you to wage war against him, but you opened with peace. On your life, I shall fulfill your decree: Any war that [Israel]
wages, they must open with peace, as it says: 'When you come near to a city, etc.'" (Devarim Rabba 5:13). The
implication is that it turned out that Moshe understood God's deeper intention regarding the conduct of war in
general. Similarly, we find in another source: "'Her ways are ways of pleasantness, and all her paths are peace.'
Whatever is written in the Torah was written for the sake of peace. Even though the Torah speaks of wars, even
wars were written about for the sake of peace. You find that the Holy One, blessed be He, annulled His decree for
the sake of peace. When? When the Holy One, blessed be He, said to Moshe: 'When you shall besiege a city a long
time,' and the entire passage, the Holy One, blessed be He, said to destroy them, as it says: ' You shall utterly destroy
them.' But Moshe did not do that, but rather he said: Shall I go now and smite he who sinned together with he who
did not sin?! Rather, I shall approach them with peace, as it says: 'And I sent messengers out of the wilderness of
Kedemot to Sichon king of Heshbon with words of peace, saying, Let me pass through your land.' When he saw that
[Sichon] was not coming in peace, he smote him … The Holy One, blessed be He, said: I said: 'You shall utterly
destroy them,' but you did not do so. On your life, as you said, I shall do, as it says: 'When you come near to a city to
fight against it, proclaim peace to it'" (Tanhuma Tzav, 3).

(Translated by Rav David Strauss)