Legal Floors and Moral Ceilings: A Jewish Understanding Of Law and Ethics
"Is what is holy holy because the Gods approve of it,or
do they approve of it because it is holy?" (Plato’s Euthyphro 10a)
"Derekh Erets Kadmah la-Torah" [Civility precedes
the Torah] (Avot 3:17)
One dimension of the age-old debate between Christianity and Judaism concerns
the nature of the biblical covenant between God and the Jewish people. Paul
of Tarsus understood the covenant to consist primarily, perhaps exclusively,
of law (Romans 3). Hence the Christian preference to translate ‘Torah’ as ‘Law,’1
over the more accurate literal translation ‘teaching,’ which connotes both legal
and non-legal dimensions. Because of its purported exclusively legal character,
Christian theology deemed the "old" covenant spiritually destructive
and needing higher fulfillment (Galatians 3, 5). Jews, of course, understand
that Jewish law is constitutive of Judaism and Jewish identity: No interpretation
of Torah that disposes of mitsvot as binding legal obligations can accurately
depict the living covenant between God and the Jewish people. For Jews the question
is not whether Jewish law (halakhah) is necessary, but whether it is
sufficient: Is the ideal Jewish life defined exclusively by the legal decisions
of halakhah, or is another component required as a complement? Plato
and Aristotle framed the question as, "What constitutes the good life?"
but I prefer to inquire in the words of Micah, "What does God demand of
The issue at hand relates to the more general philosophic debate between natural
law advocates and legal positivists. The debate is old, but continues unabated.2
The former maintain that there exist fundamental moral values, such as justice,
that are derived from either reason or nature and that are antecedent--both
temporally and axiologically--to any specific empirical legal code. Indeed,
the validity of a given legal order is judged by the degree to which it is consistent
with or promotes these fundamental natural values. "An unjust law is not
a law,"3 announces the natural law theorist, for if a rule violates
the moral requirements of justice it cannot be valid law. In contrast, the legal
positivist maintains that a legal system is validated not by independent values,
but by the authority of its legislator and the coherent ordering of its internal
norms and principles. Nomic validity remains independent of moral content. In
fact, for some positivists ethical values evolve out of the legal code itself,
which defines the concrete expression of morality. Acknowledging no external
criteria for justice, these legal positivists paradoxically also believe that
"An unjust law is not a law," for if it is law it is eo ipso
A Jewish variant of this positivist position has been termed "halakhic
positivism." It claims that all Jewish moral values take the form of halakhic
judgments (dinim). In philosophic terms, the halakhic positivist maintains
that the proposition, "Jewish legal imperatives delineate Jewish moral
behavior," is a necessary synthetic--and perhaps even analytic--truth.
God’s will in every situation for the Jewish people collectively and individually
is found in the formal canons of Jewish law. In a word, the objective corpus
of halakhah is the ultimate arbiter of what is good, right and just.
Halakhic positivism has acquired high currency among some modern Jewish thinkers,
particularly talmudists trained in the analytic method of study that developed
in the 19th and early 20th century Lithuanian talmudic
academies. A famous example is the pronouncement of R. Abraham Isaiah Karelitz
(Hazon Ish): "Ethical obligations are at times.... one with the decisions
of Jewish law (pisqei halakhah).... The halakhah determines the
prohibited and the permitted in the realm of ethics."4 Despite
the presence of the qualifier "at times," the remainder of this work
seems to indicate that Hazon Ish claims moral obligations to be totally congruent
with halakhic decisions.5 More recently, an Orthodox rabbi and professor
of law provided another paradigm in a philosophic paper.6 He argued
for an extreme version of halakhic positivism--which I will term ‘hard’ halakhic
positivism7 --that fuses halakhic positivism with halakhic formalism8
, considering the two synonymous (p. 539). He contends that "the norms
of halakhah constitute the sole constraint upon human conduct" (ibid),
denies that "there is any content of natural morality that is not encompassed
by the subject matter of the halakhah" (p. 538), and insists that
"there is no room in Judaism for accommodation of the moral demands advanced
by individual conscience" (p. 536). Thus philosophy sometimes makes strange
bedfellows: Traditional halakhic positivists find themselves in complete agreement
with Christian polemicists who portray the Torah and Judaic ethics as limited
to law. Of course, for many Christians this legal exclusivity rendered the Torah
spiritually invalid, while halakhic positivists consider it to contain the very
essence of Jewish spirituality.
To be sure there are positivist elements in halakhah. A coherent conception
of Jewish law may be consistent with a version of ‘soft’ positivism.9
My immediate concern is the coherence and validity of hard halakhic positivism.
I will attempt to demonstrate that this thesis is logically muddled, and that
it is indefensible in light of both normative halakhah and Jewish philosophic
traditions. More strategically, I wish to formulate a Jewish conception of the
relation of law to ethics and thereby identify the place of hesed in
proper religious experience. Maimonides taught that we can approach a positive
conception of God by identifying its negation and purging that idolatry from
correct belief (Guide 1:58). By determining what is rejected, we begin to understand
what is true. Thus deconstructing halakhic positivism may help us paint a picture
of the holy life that traditional Jewish sources insist upon.
One last introductory point: The determination of Jewish law as sufficient
or merely necessary for ideal Jewish living is no mere semantic matter, as Plato
and twentieth century meta-ethical philosophers might have it.10
We shall soon see that the difference is substantive, containing crucial implications
for halakhic orientation, moral experience and the quality of Jewish spiritual
II. The Insufficiency of Law
Plato and legal positivists may have doubts about the empirical independence
of law and ethics, but talmudic rabbis did not. Evidently they understood that
law neither defines ethical categories (the stronger positivist claim), nor
does legal compliance satisfy ideal moral standards (the weaker claim). Consider
the following talmudic passage:
R. Yohanan said, ‘Jerusalem was destroyed only because [Jews] judged
according to the law (din) of the Torah.’ [But] should they have
judged according to the laws of tyranny? Rather say, ‘They insisted on
the law of the Torah and did not act above and beyond the strict requirement
of the law (lifnim mishurat ha-din).’ (BT, Bava Metsi`a
Classic Judaism views the destruction of Jerusalem as punishment for the violation
of God’s covenant. According to R. Yohanan, this theological failure existed
concurrent with impeccable compliance with Torah law ("danu din Torah").
Yet the Jewish people were held culpable by the Divine and incurred the harshest
punishment known to Jewish history up to that time. They would have been legally
acquitted in a rabbinic court, yet they were convicted in the "heavenly
court."11 That there exist other talmudic claims identifying
different failings as responsible for the destruction poses no problem for this
thesis. No talmudic opinion challenges the intelligibility of the category of
‘lifnim mishurat ha-din’ or the conceptual presuppositions of Rabbi Yohanan’s
statement, i.e. that the Torah demands behavior that transcends formal halakhic
The Talmud deals with case law and never offers a definition or conceptual
explication of ‘lifnim mishurat ha-din.’ That task is left to medieval
Jewish legal authorities with philosophical bents, whose opinions we will explore
later. For now, it is important to note a few of the concept’s well-known analytic
difficulties. ‘Lifnim mishurat ha-din ’ is a complex category subject
to varying definition.12 It is invoked in halakhic discussion, yet
the concept transcends formal halakhic parameters. It is concurrently philosophical,
moral and contextual. Lastly, it contains subjective dimensions, being influenced
by the judgments of those present in the immediate situation, and its particular
application is not always derivable from a formal objective legal principle.13
Rather than offering a conceptual definition, we do well initially to examine
the talmudic usage of lifnim mishurat ha-din and analyze its meaning
The Talmud explicitly discusses this standard only in five cases, while Rashi
identifies an implicit sixth case.14 The incident recorded in Bava
Qama 99b serves as a starting point for understanding lifnim mishurat
There was a woman who showed a dinar to R. Hiyya. He told her
it was good. She later came to him and said, ‘I showed it [to others]
and they told me it was bad and I could not use it. He [R. Hiyya] then
said to Rav, ‘Go and change it for a good [coin] and write down in my
register that this was bad business.’ But why should he be different from
Danko and Issur, who were exempt because they needed no instruction? Surely
R. Hiyya needed no instruction! --R. Hiyya acted lifnim mishurat ha-din!
R. Hiyya was an expert moneychanger (shulkhani), and as such his judgment
established the standard for usable currency. He thus remained halakhically
immune from judgmental error and legal liability. Yet he absorbed the monetary
loss by giving the woman an indisputably good coin from his account. Apparently
R. Hiyya sensed that reimbursing the woman was the right thing to do, despite
his legal dispensation.
Another case found in Bava Metsi`a 83a deepens the problem:
Rabba bar Bar Hanan had porters who broke his barrels of wine [in transport.]
He seized their garments [which they had deposited as collateral.] They
brought him to Rav.15 Rav said to him, "Give them their
garments." [Rabba bar Bar Hanan] asked him, "Is this the din?"
"Even so [In]," he replied: "In order that you may
walk in a good path." (Proverbs 2:20) He returned their garments.
They exclaimed, "We are poor, we have labored all day, are hungry
and have nothing to show for it!" [Rav] said, "Pay them their
wages." [Rabba bar Bar Hanan] asked further, "Is this the law?"
"Even so [In]," he replied: "You shall keep the
path of the righteous [tsadiqim]." (ibid)16
Rashi (ad loc.) identifies "a good path" with lifnim mishurat
ha-din. This case is more difficult than the former because Rabba bar Bar
Hanan neither did anything wrong nor exercised imprudent judgment (as may have
R. Hiyya), yet he is asked to absorb a substantial loss. The narrative also
strongly implies that Rabba bar Bar Hanan did not freely concede his rights
and money, but did so involuntarily under the pressure of Rav. Lastly, it is
clear that Rav’s directives actually contravene basic Jewish tort law (nezeqin).
The fundamental principles of Jewish tort law dictate that the porters are liable,
and are obligated to make restitution to Rabba bar Bar Hanan for damages caused.17
Absent such restitution, Rabba bar Bar Hanan possesses full rights to confiscate
their garments. Note also that the proof text for Rav’s advice is not a legal
pentateuchal passage, but a general moral maxim from Proverbs appealing to undefined
generic ideals ("a good path," and "the path of the righteous").
The four other talmudic cases of lifnim mishurat ha-din are remarkably
similar. They exhibit the following essential characteristics18
1. They depict situations of conflicting or competing human interests,
rather than correct application of ritual law (mitsvot bein adam lamaqom).
2. The din accords major advantage to one party and disadvantage
to the other party.
3. The cases are resolved by voluntary agreement of the parties, by moral
suasion or by agreed upon third party arbitration, rather than through
formal adjudication in a rabbinic court.
4. The cases are resolved by a departure from the din, in which
the advantaged party waives some or all of his rights to the disadvantaged
The concept of lifnim mishurat ha-din cries out for explanation. 'Why
deviate from the din?’ is the obvious legal and philosophic question.
Assuming that Torah law is perfect and exhaustive, should it not determine ideal
Jewish behavior in those cases? What justification exists for departing from
the halakhic norm?
The Talmud (Sanhedrin 32b) takes up these problems and based upon the
verse, "Justice (tsedeq), justice you shall pursue" (Deut.
16:20), it intimates two distinct concepts of justice: tsedeq as strict
din and tsedeq as ‘p’sharah’(equity), i.e. the fair balance
of interests. It was fairness that was R. Hiyya’s guiding principle of action.
Essentially Rav felt--as did R. Hiyya in the previous case--that to resolve
the conflict according to strict din would be wrong since it ignores
tsedeq as equity. Both Rabba bar Bar Hanan and R. Hiyya were businessmen,
likely of means. The porters were poor, and perhaps the woman before R. Hiyya
was a widow with no husband to manage the household commerce.19 These
wealthy men could easily absorb the loss, whereas their indigent rivals would
suffer indignity if denied compensation. As in the initial case, the Talmud’s
concept of tsedeq as equity is normative here, and takes precedence over
tsedeq as literal application of law.20 In either case, to
apply the strict din would exploit human weakness and violate a responsibility
toward the disadvantaged parties. As such it constitutes unacceptable religious
III. Rabbinic and Kabbalistic Conceptual Explication
Nahmanides conceptually links lifnim mishurat ha-din with moral correctness
and imitateo dei, indicated by the generic commandments, "You shall do
what is right and good in the eyes of God," (Deut. 6:18) and "You shall be holy,
for I the Lord your God am holy (Lev. 19:2).21 In his commentary
on these Biblical passages, Nahmanides equates what is right (ha-yashar)
with 'p'sharah'--equity and fair balance of interests--and what is good
(ha-tov) with emulating God's attributes--imitatio dei. Nahmanides
offers a literary insight that is crucial to his conceptualization of the system
of divine commandments and law. For him, the specific legal imperatives legislated
by the Torah are a non-exhaustive list of examples of how these generic ideals
can be realized. The style of the Torah is to summarize the enumeration of specific
mitsvot with a general imperative, in this case "Do what is right and
good in the eyes of God." In other words, there is a broad moral agenda to the
system of divine law, one that lies behind the corpus of specific dinim.
Both Deut. 6:18 and Lev. 19:2 refer to the overarching purposes of Torah law.
Hence the fullest realization of Torah values sometimes entails going beyond
the particular legal imperatives that the Torah specifies.
Lev. 19:2 emphasizes that the imperative for humans to strive for holiness
is rooted in emulating divine holiness. The Talmud (Sotah 14a) asks the
obvious question: "Is it really possible for a person to walk in the footsteps
of the Shekhinah (the immanent presence of God)? Is not God a ‘devouring
fire’ (Deut. 4:24)?" How can a finite human being imitate the infinite
God? Answers the Talmud, "Emulate His actions: Just as God clothed the
naked, visited the sick, comforted the mourner, and buried the dead, so shall
human beings do likewise." The actions enumerated are the classic instances
of hesed--human kindness manifested in gestures of giving to another.
Ontologically it is the free flowing extension of one being into another. Crucial
to this passage is the opinion of R. Simlai, who maintains that the Torah begins
with an act of hesed and ends with an act of hesed.22
No mere literary observation, one meaning of R. Simlai’s claim is that the entire
Torah delineates a lifestyle of hesed. Since for the Ramban, moral goodness
('ha-tov') equals 'hesed,' the source of ethical goodness
is spiritual----the character of God Himself---and the primary thrust of imitatio
dei is the emulation of the divine attribute of rahamim, expressed
behaviorally in acts of hesed.
We can now appreciate Nahmanides' conceptual link. God is the infinite, perfect
Being and as such is beyond constraint. He is not required by metaphysics or
law to act with hesed, or to act at all. Yet according to the Jewish
understanding of divinity, God created the world, entered human history, revealed
the Torah, and maintains continual relationships with His creatures. Neither
God’s relation with the world nor His involvement in human affairs are responses
to any imposed natural law or consequences of external necessity; they are natural
emanations of divine goodness. Thus the broader implication of the imperative
of imitatio dei is that human holiness must include action resulting
from a natural autonomous overflow of moral character, in addition to principled
obedience to heteronomous legal norms. The former requires identification with
and compassion for others, and a refusal to exploit others even when formal
law might allow it. When we act naturally with hesed, we transcend legal
obligation and act lifnim mishurat ha-din. 23If one confines
himself exclusively to the four ells of halakhah, to the strict requirement
of the law, he may become, in Nahmanides’ potent formulation, a ‘naval b’rshut
ha-Torah---"a despicable person within the bounds of the law."24
Maimonides also develops the concept of lifnim mishurat ha-din and connects
it to both imitatio dei and hesed. He postulates that human beings
are commanded to "walk in His ways," identifying those ways with "good
and straight (yashar) paths," and interprets the divine emulation
to mean adopting attributes exhibiting the Aristotelian mean: "Just as
God is called compassionate, so are we to have compassionate character; just
as God is called merciful, so are we to have merciful character; just as God
is holy, so are we to be holy"
(Hilkhot Deot [Laws of Moral Dispositions] 1:6). Maimonides’
formulation focuses on the development of virtuous character rather than on
external legal action--what one thinker describes as "agent morality"
in contrast to "act morality."25
Maimonides terms one who follows the strict law of the mean a 'hakham.'
By contrast, the one who commits himself to strive toward one of the positive
extremes, such as humility or patience, is a hasid.26 By voluntarily
assuming the extra-legal responsibility of going beyond the required mean, the
hasid exhibits the attribute of hasidut. It is precisely midat
hasidut that Maimonides identifies with lifnim mishurat ha-din (Hilkhot
Deot [Laws of Moral Dispositions] 1:5). Although Maimonides refers to
virtuous character while Nahmanides refers to ethical acts, Maimonides too understands
that hesed is a counterpoint to strict legal obligation.
In The Guide for the Perplexed Maimonides explicitly formulates the conceptual
distinction between the extra-legal nature of hesed and legal requirement
Hesed is excess (haflagah)-- In most cases it is applied
to excess in beneficence.
Beneficence includes two notions, one consisting in the excess of beneficence
one who has no right at all to claim this from you, and the other
consisting in the exercise
of beneficence toward one who deserves it, but in a greater measure than
he deserves it. --
Mishpat means judgment concerning what ought to be done to one who
is judged (3:53).27
It is in his great legal oeuvre, Mishneh Torah, however, where
Maimonides is unequivocal about the inadequacy of law as an exclusive guide
to ideal behavior:
It is permitted to work a Canaanite servant with rigor. Even though the
law (din) is such,
the quality of lovingkindness (midat hasidut) and ways of wisdom
dictate that a person
be merciful (rahaman) and pursue righteousness (tsedeq) and
not increase the servant’s
burden or cause him distress....
So it is explained in the good paths of Job, in which he prided himself:
If I did despise the cause of my manservant,
or of my maidservant, when they contended with me.
Did not He who made me in the belly [also] make him?
And fashion us both in one womb? (Job 31:13-15)28
Cruelty and brazenness are found only amongst heathens and idolators. However,
the children of Abraham our father, that is the people of Israel, whom God
has influenced through the goodness of the Torah and commanded them with
statutes and righteous laws--they are compassionate to all. Thus in regard
to the attributes of the Holy One Blessed Be He, He commanded us to imitate
them, as it says, "His mercies are upon all his works" (Hilkhot
Avadim [Laws of Servants] 9:8).
This remarkable passage is noteworthy for its extreme language as much as its
grand vision. Maimonides, the halakhic voice who is sometimes majestic but rarely
extreme29, consciously resorts to immoderate terminology and expansive
expression when ending the Book of Aquisition in his code. This stylistic exception
makes his point inescapable: Law untempered by midat hasidut results
in cruelty and brazenness. Evaluated in terms of Jewish values, such behavior
is heathen and worthy only of idolators. Again strict legal compliance is contrasted
with autonomous agency (hesed), whose source is imitation of divine character.
Though din does not require it, a comprehensive influence of Torah ethics
makes one a rahaman and ba’al hesed. So emphatic is Maimonides
on this essential character of Jewish behavior that he claims should one encounter
a Jew lacking compassion and hesed, that Jew’s pedigree should be investigated
for probable gentile origin (Hilkhot Issurei Be'ah [Laws of Forbidden
Relations] 19:17). Though there are important differences between them, both
Nahmanides and Maimonides insist that ideal Jewish behavior occasionally requires
transcending strict law and includes non-legal acts of hesed. As religious
values, the virtue of compassion and its expression as autonomous giving derive
from the character of God, rather than divine legal imperative. Finally, both
intimate that specific Torah laws (dinim) have lofty moral ideals as
their overarching purpose.
Jewish mystical tradition also portrays hesed as counterpoint to law.
Kabbalah identifies hesed with "gedulah" (greatness).30
This is the name of the fourth sefirah, manifestation or creative power
of God. It is symbolized by water since water naturally flows outward, expanding
until it is blocked by an external boundary.31 As a divine attribute,
gedulah is the outward extension of divine infinitude into the finite
empirical world. God is characterized through the attribute of gedulah by
largesse: God has, as it were, a magnanimous personality. It was this
virtue that caused God to autonomously create the universe and relate voluntarily
to something beyond Divinity. The patriarch Abraham is the personification of
hesed, since he was careful to extend himself in hospitality to others.
Prior to revelation at Sinai there was no formal legal obligation or divine
command to so act, hence Abraham’s actions were a natural result of his autonomous
In contradistinction to hesed, din is identified with the sefirah
of "gevurah," which is the complement of gedulah. Gevurah
is identified with constraint, best exemplified in the maxim, "Who is a
hero ["gibor", a cognate of "gevurah"]? He
who conquers his impulses" (Avot 4:1). Gevurah is the virtue
of controlled discipline, evidenced by obedience to a heteronomous restraining
principle. In opposition to hesed, gevurah is symbolized by fire, that
which devours water or is destroyed by it.32
IV. Hesed and Theology
The statement of R. Simlai ("The Torah begins with hesed and ends
with hesed.") now assumes different levels of meaning. As mentioned
earlier, one level of interpretation is that the entire Torah is characterized
by hesed, i.e. it sets forth a vision of the ideal life whose goals are
behavior characterized by mercy and compassion. A 19th century hasidic
master and kabbalist, Zvi Elimelekh of Dynow33 offers a second interpretation.
For him, it is not the Torah’s content that characterizes hesed, but
the giving of the Torah that is the quintessential act of hesed.
God stands under no moral or logical compulsion to initiate covenants with human
beings, or to impart to them the divine word (Torah) or divine will (mitsvot).
Indeed, as deists claim, it is logical for the perfect God to create the universe
and then withdraw, leaving the imperfect material world to human devices alone.
Though deism may be philosophically more tenable, the Jewish God invests Himself
in human affairs by freely maintaining a relationship with humanity and bestowing
upon them the gift of Torah. Philosophically, this is lifnim mishurat ha-din--the
great hesed that pervades human history. Hence, claims Benei Yissakhar,
the blessing that explicitly mentions the giving of the Torah includes only
the Tetragrammaton (the name identified with God’s personal and compassionate
attribute, i.e. midat hesed) and omits Elohim (the name
identified with midat ha-din). Because the giving of the Torah is hesed
par excellence, Jewish tradition mandated that we eat dairy foods on hag
ha-Shavuout, the holiday commemorating the giving of the Torah. A mother’s
milk is, after all, the universal symbol of hesed. 34
The linking of Torah with hesed may also be the reason that rabbinic
tradition prescribed reading the Scroll of Ruth--called "megillah sh’kula
hesed,"35--on that holiday. The heroes of the megilah,
Boaz and Ruth are persons who act beyond reason and above what is required by
law. Only Ploni Almoni adheres to the strict requirement of the law,
and tradition obliterated his real name from Jewish history forever. It seems
likely that rabbinic tradition chose the Scroll of Ruth for public reading on
the holiday commemorating revelation at Sinai in order to pre-empt an erroneous
exclusively legal understanding of the content of revelation. The juxtaposition
of reading the Decalogue with reading Megilat Ruth emphasizes that Torah
is a complementary balance of din and hesed.
There is a deeper metaphysical third level of meaning to the statement of R.
Simlai. Creation itself--the beginning of the Torah--is fundamentally an act
of hesed. As Aristotle understood, a perfect God has no need or motive
to act at all. Hence creation of the cosmos is philosophically unnecessary.
Yet Jewish tradition insists that God created the universe and that, "The
world is built with hesed."(Ps. 89:3)36 God did so not
because of any requirement to act, but because a natural property of His divine
goodness is overflow. There is only one thing Aristotle’s self-sufficient God
dwelling in splendid isolation cannot do: be a ba’al hesed, a giver.37
This limit renders God morally deficient from the perspective of Jewish theology.
Creation is metaphysically superfluous, but necessary for the construction of
the Jewish moral weltanschauung. If the conceptual essence of hesed
is the natural autonomous overflow of being toward another, then the creation
of the life-supporting universe is a cosmic manifestation of divine compassionate
nature.38 Philosophically, this divine creation is hesed writ
on a cosmic level; ethically, the act of cosmic creation serves as the prototype
for human hesed.
V. Hesed as Mitzvah
It is clear that there are two logical categories of mitsvot, just as
there are two types of scriptural imperatives. The first type of mitsvot
can be formulated as din: Dinim are specific, determinable and
in principle actionable. Because they admit of precise definition and quantification,
they are given to rational analysis. Their violation can be conclusively demonstrated
by formal argumentation, objectively determined by a halakhic authority and
adjudicated by a human court. These legal mitsvot appear for the most
part in the various catalogues of the 613 mitsvot compiled by rabbinic
The second type of Torah imperative is generic, contextual and should not be
construed as formal law. Maimonides makes this point in his analysis of the
mitzvah of "You shall be holy" (Lev. 19:2), insisting that
it not be catalogued as one of the 613 legal imperatives. (Sefer ha-Mitsvot
[Book of Commandments], Shoresh 4). In the words of a noted scholar,
this is because the imperative to be holy is a "super-category", an
overarching objective under which specific dinim fall.39 Nahmanides
makes the same point in his commentary on that verse--the despicable scoundrel
is, after all, still within the bounds of the law--and voices no disagreement
with Maimonides’ insistence that the imperative to be holy is not to be catalogued
as legal mitzvah.
Maimonides views "You shall be holy," similar to the same way Nahmanides
explains, "You shall do what is right and good in the eyes of God."
These imperatives are not law in the positivist sense--they are more than
law. This critical distinction is the reason why both authorities also omit
the latter imperative from the list of mitsvot. Interestingly,
Maimonides catalogued the other overarching super-categories of "You shall
love your peer as yourself," (positive mitsvah 206) and "You
shall walk in His ways," (positive mitsvah 8) only in terms of developing
personality virtues, not in terms of any specific behavioral requirement. The
explanation for this may be a function of Maimonides’ theological commitments40,
but may also be that cataloguing them as law would run counter to the essential
thrust of hesed as autonomous activity. There is no sharp wall for Maimonides
between legal norms and ethical values. There appears to be a continuity ranging
from specific formal legal requirements on one end to generic directives on
the other. The objective of these latter mitsvot is the development of
a moral character suffused with rahamim that naturally expresses itself
in innumerable--and uncatalogueable--acts of benevolence. All talmudic discussions
of lifnim mishurat ha-din presuppose this distinction between strict
definable law and the higher moral ideal of acting above and beyond the law.
Once again, conceptually this is din in contrast to hesed.
Of course specific acts of hesed are sometimes integrated into formal
halakhah. The mitsvot of visiting the sick, comforting the mourner
and burying the dead have become the hallmarks of Jewish life and are undeniably
legal obligations for all Jews. Another example of hesed enshrined as
mandatory law is the prohibition of issuing loans on interest. During the Middle
Ages Jewish and Christian representatives debated the character of extending
interest-free loans. Christian theologians saw it as a corollary of reason (i.e.
natural law), and therefore applied the prohibition universally. Jews, however,
argued that there was nothing illogical to "money making money," and
insisted that the said prohibition was a non-rational act of compassion that
the Torah demanded of a Jew toward his fellow Jews:
David and Ezekiel forbade only what the Torah forbade, and the Torah
forbade charging interest to the Israelite, but permitted it to the gentile......
An Israelite must perform hesed with his fellow Israelite and a
loan without interest is hesed and loving-kindness--indeed a greater
loving-kindness at times than an outright gift, for many people are humiliated
at the thought of accepting a gift, but not at accepting a loan. This
is not so regarding the relation between and Israelite and a gentile.
The Israelite is under no obligation to perform hesed with him
and to lend him his money without interest, for they generally hate the
Israelites. Certainly, however, if the gentile performs hesed and
loving-kindness with the Israelite, the Israelite should also perform
hesed and loving-kindness with him. 41
It should be noted that these instances of legally obligatory hesed
still retain vestiges of their original non-legal nature: As we saw, the Talmud
locates the scriptural foundation for these gimilut hesed in narratives,
not in legal imperatives. Because it is difficult to understand how a legal
obligation could be derived from such narrative, Maimonides considers it rabbinic
in nature, yet he subsumes it under the scriptural imperative to love one’s
peer (Hilkhot Avel [Laws of Mourning] 14:1). Had Maimonides understood
the verse to be a legal principle of action, he would have considered these
acts of hesed to be biblically rather than rabbinically mandated.
The hesed of granting an interest free loan to one in need is clearly
a legal obligation. Yet halakhah resisted coercing someone to fulfill
that obligation, even though it had ample legal justification for doing so.
In actual practice, this obligation was never made an object of judicial coercion.42
Rabbinic authorities preferred instead to encourage people to loan voluntarily,
thus preserving the original thrust of hesed, and emphasizing phenomenologically
the autonomous character of the act. Another lifnim mishurat ha-din dimension
regarding the charging of interest concerns loans extended to non-Jews. The
legal prohibition against charging interest does not apply to loans made to
a gentile43, yet the Talmud (BT Makkot 24a) singles out King
David for special commendation because he refused to charge gentiles interest.
This was lifnim mishurat ha-din, hesed extended. Evidently King
David understood the moral impulse behind the legal prohibition of interest.
To be true to the Torah ideal present in the rationale of hesed, he voluntarily
decided to apply this standard universally. Note Radak’s ending remark in his
commentary to Psalms 15:5. He, too, advocated this moral--but not halakhically
These two instances of hesed are exceptions to the rule. That they have
become incorporated into the codes of formal halakhah in no way justifies
hard positivism’s general claim that all hesed is legal. Such a generalization
nullifies the essential character of hesed, conflating it with the legal
connotation of tsedeq.
VI. The Argument Against Hard Halakhic Positivism
The essential argument for hard halakhic positivism can be reduced to the following
(1) All moral values emerge from revelation.
(2) Revelation is essentially formal law.
(3) Therefore all moral values emerge from halakhah as formal law.
The word "essentially" in (2) is not intended as a hedge. I assume that
even the traditional halakhic positivist concedes the basic principle of Jewish
jurisprudence that halakhic obligations derive from Moses at Sinai and not before.44
This means that the entire Book of Genesis--both its narrative and non-narrative
passages--lacks legal character. (See Rashi on Genesis 1:1.) The well-known
rabbinic tradition teaches that the Book of Genesis is included in the Torah
because it provides models of high moral character exemplified by the
patriarchs--none of whom could have been obligated by formal halakhah
or mitsvot.45 These models clearly have normative import in
Jewish tradition, but no legal (halakhic) status. This poses a logical difficulty
for the halakhic positivist who identifies valid Jewish norms exclusively with
formal law (proposition 3). However, it merely foreshadows larger problems.
The proposition put forth in premise (1) is philosophically, empirically and
Jewishly questionable. Yet even if we assume (1) to be true, (2) is demonstrably
false on Jewish grounds. Consider the following argument: The hard halakhic
positivist considers the mishnaic literature known as Pirkei Avot to
be of Sinaitic origin. He consistently uses the terms, "revelation,"
"halakhah," and "objective law" interchangeably,
because he claims that the ascription of Sinaitic origin to this literature
suffices to prove its objective legal status (R. Bleich, p. 537). Yet it is
difficult to see how majority of the maxims in this work--whatever their origin--can
be construed as legal or objective judgments. "Rabbi Yohanan said, ‘Be
yielding to a superior, pleasant to the young, and receive every person cheerfully’"
(3:16). Can the advice to be ‘pleasant to the young’ have objective connotation?
Pleasantness is, as we all know, a matter of subjective taste. Is this formal
law or simply good moral counsel? Surely no court could find a person liable
for rejecting any of the three imperatives in this mishna. Despite their
wisdom, they have no legal force and no place in a court of law.
The same holds true with the generic moral propositions "Be holy,"
"Do what is right and good," "Act above and beyond the strict
requirement of the law," and "Follow a good path." No code, qua
law, contains such imperatives. They are too general and contextual to serve
as the basis for adjudication or to be enforced in consistent manner. Any correct
realization of these ideals in a given situation flows more from the agent’s
direct moral sense than from an apodictic inference from precisely defined legal
principles to the specific case at hand.46 For this reason, formal
halakhic argumentation does not utilize them. Although talmudic authorities
did enact two laws based on the scriptural imperative, "Do what is right
and good," this imperative was never used as a source for the promulgation
of any subsequent enactments. Moreover, in judicial decisions where ‘Do what
is right and good,’ is cited, it is never presented as the dominant ratio
decidendi, but as an ancillary, inspirational consideration.47
In the words of one rabbinic thinker, they denote purpose and direction rather
than definitively defined acts.48 It is here that the inconsistency
of hard halakhic positivism is exposed: The only way that (2) can be defended
in light of Jewish sources is if the halakhic positivist posits a broad conception
of halakhah, one that includes the above open-textured principles. Yet
a halakhic positivism that is synonymous with halakhic formalism excludes formal
appeal to these generic principles.
Of course even the hard halakhic positivist must acknowledge the existence
of lifnim mishurat ha-din as an authentic Jewish value. To preserve his
thesis he is forced to claim that this category is subsumed under din itself
(R. Bleich pp. 527, 535), and therefore is operative in formal halakhic reasoning.
This is a hopeless strategy entailing inevitable contradiction. The terminology,
"lifinim mishurat ha-din," implies that attempting to reduce
this concept to din would entail an infinite regress. In addition to
this internal logical problem, consider the earlier cases: No formal halakhic
arguments exist proving that a Jew is prohibited legally from treating a gentile
servant "with rigor" or that King David was legally obligated to refrain
from charging interest to a gentile. The reason is obvious: Such arguments would
flatly contradict codified halakhah.49
The case of the negligent porters (Bava Mets’ia 83a) further exposes
the futility of this attempt. Countenancing that Rabbah bar Bar Hanan is legally
obligated to pay the porters’ wages impels the halakhic positivist to rely on
an inauthentic version of the text50, deny codified Jewish tort law
that covers this class of cases (Maimonides, Hilkhot S'khirut [Laws
of Hiring] 3:2; Tur, Hoshen Mishpat 304), depart from accepted
halakhic methodology by using a non-legal verse in Proverbs as a basis for a
halakhic imperative51, and interpret the text as one that announces
an actionable legal requirement when neither the text nor normative halakhah
indicates any such coercion.52 The enforceability of lifnim mishurat
ha-din was rejected by Sephardic decisors, including Shulhan Arukh (Hoshen
Mishpat 259:5). The normative position regarding this category is in accordance
with the words of R. Hananel: "If one wants to act lifinim mishurat
ha-din, he returns (the lost property)53, and Maimonides: "He
who wants to take the good and straight road and act lifnim mishurat ha-din,
should return the lost article." 54 That is, the decision is
up to the finder; his actions are dictated by conscience.55 Although
some Ashkenazic poseqim accepted the enforceability of lifnim mishurat
ha-din, this view never became the consensus of authoritative legal opinion
in Ashkenaz.56 Even R. Joel Sirkes (Bah), who makes the most
elaborate case for the actionability of lifnim mishurat ha-din, limits
enforceability to situations where those asked to waive their rights under lifnim
mishurat ha-din are persons of wealth. He explicitly denies that a court
can enforce lifnim mishurat ha-din when the defendant lacks wealth (Hoshen
Mishpat 12:4 and 304:1). So limited, the enforcement cannot be seen as formal
din, for doing so would directly contravene the scriptural injunction
of Lev. 19:15: "You shall not render an unjust decision: Do not favor the
poor or show deference to the rich."57 Jewish law, like all
valid law, must be ‘blind,’ i.e. impartial in dispensing justice between contending
parties. Neither wealth nor poverty can determine just legal decision. Hence
even those few authorities that considered lifnim mishurat ha-din actionable
are forced to admit that its enforceability depends upon the presence of non-legal
subjective criteria.58 A rigorous formal understanding of halakhah
that reduces lifnim mishurat ha-din to din cannot escape incoherence.
Clearly the Talmud considers these acts desirable acts of hesed, but
they represent the expression of the Torah’s aspirational moral norms, in contrast
to the obligations of formal law. One rabbinic philosopher has appropriately
termed them "Covenantal Ethics"59
Lifnim mishurat ha-din and its associated generic principles constitute
the philosophic or moral ground for specific rules of action enshrined as law,
but the grounds themselves posses different conceptual status. At most, one
may say that these principles are second-order quasi-legal rules: They constitute
non-formal halakhah, contrasted with formal din. As overarching
"super-categories" they constitute meta-halakhic ends to specific
halakhic prescriptions. This is exactly the point Nahmanides makes in his explication
of "You shall be holy" and why Maimonides as well refuses to count
this imperative in his enumeration of legal obligations.
Lastly, rules qua law, must apply to a given class of people and cannot
view each individual sui generis.60 Valid positive law is
not relative to individual persons nor humanly undeterminable, yet hard halakhic
positivism is forced to attribute these qualities to Jewish law in order to
make sense of Jewish sources. According to the hard halakhic positivist, halakhah
posits different relative obligations for every person "commensurate with each
individual's apprehension of the Divine essence" (R. Bleich, p.540), laws
whose fulfillment and violation are "undetectable by any human court,"
and standards that are "objective and mandatory only in the eyes of the
Deity" (p. 542). This is a very strange notion of law indeed for any legal
positivist or formalist61, certainly for the analytic talmudic school
that celebrates legal rigor and the determination of precise quantity, timing
and definition of dinim. Recall that Hazon Ish identified moral obligations
as identical with the well-defined decisions of halakhah (pisqei halakhah),
not a conception of halakhic standards that are in principle relative
and unknowable to human beings. Positivist halakhah is objective,
open to human analysis and determination; its study is a cognitive and discursive
enterprise, not an intuitive nor a mystic experience.62 As philosopher,
the hard halakhic positivist is forced to admit that halakhot are relative,
indefinable, and undeterminable to account for Talmudic ‘data’--yet as formalist
he is bound to a rigorous quantifiable and determinable conception of halakhot.
The debate over the correctness of halakhic positivism is not one of mere nomenclature,
regarding what one subsumes under the rubric of halakhah. Hesed
as a spiritual standard transcending strict law is anathema to the hard halakhic
positivist. The necessary conclusion is that consistent hard halakhic positivism
is philosophically opposed to hesed in theory and, unfortunately, in
practice as well. This is indicated by how the halakhic positivist treats the
tragic problem of agunot ("chained" wives condemned to unmarriageable
status because their husbands refuse to grant them a Jewish bill of divorcement).63
He rejects in principle employing the mechanisms of state law, qiddushei
ta’ut (defective marriage) and get zikui (divorce via constructive
agency) as solutions to the problem, even when established halakhic authorities
such as R. Moshe Feinstein64 and R. Eliyahu Klatzkin65
deemed these mechanisms acceptable. It is important to note that because these
rejections flow from an unyielding hard positivism, they are directed not merely
at a particular application by any specific rabbinic court, but apply categorically,
i.e. to every possible application of these halakhic instruments toward
this end.66Halakhic positivism’s cardinal methodological principle
appears to be, "Let the din bore through the mountain," even
though Sanhedrin 6b rejects that principle in favor of compromise (bitsuah).
At issue is not a possible violation of law, but whether it is proper to approach
the halakhic problem with a priori compassion for the agunah that
yields a ‘hesed bias’ to exploit all halakhic possibilities for her release.
In contrast, R. Benjamin Slonik articulates the more traditional--and normative--rabbinic
method of dealing with agunot:
I follow the well-trodden path of the earlier and later shepherds, who
with all their strength all manner of considerations, primary and secondary,
to be lenient in matters pertaining to agunot, as I have cited above.67
To one prominent contemporary rabbinic authority, this halakhic orientation
is "self evident to one familiar with the history [of psaq regarding
It is possible that soft halakhic positivism is a defensible thesis when it
refers to a broad conception of halakhah that encompasses extra-legal
moral norms as well formal law.69 Halakhic formalism may also be
tenable when it refers to a technical notion of law and concedes that formal
halakhic canons are limited in scope, leave laqunae in areas of human
behavior, and require complementary authentic non-legal ethical values. Hard
halakhic positivism as a fusion of an imperial halakhic positivism with a formalistic
conception of halakhah, however, is quite another matter.
One can understand why hard halakhic positivism is attractive today: As a binary
thesis, it appears as an unambiguous effective response to the antinomian impulses
of modernity. Upon analysis, however, it proves to be only a rhetorical position,
one that is logically incoherent and impossible to defend on Jewish and normative
halakhic grounds. It is advanced only by generalizing from non-normative minority
sources70, ignoring selected classical Jewish sources71,
dismissing others as insignificant72, and stretching both essential
Jewish texts and the concept of formal law beyond any rational recognition.
This conception of Torah may be an old thesis in the Christian theology, but
it is a distinctively modern thesis for Jews: No talmudic or medieval rabbinic
source subscribed to it.
As indicated, deciding whether din is sufficient or merely necessary
for the Jewish conception of the good life is not a trivial choice between Tweedle-Dee
and Tweedle-Dum. All Jewish traditions--talmudic, philosophic and mystical--warn
against the devastating consequences to the spiritual life of assuming a posture
of strict din without hesed. As we saw, the text of Bava Metsi'a
30b indicates that at one time such an ethic led to spiritual pettiness. This
smallness of character caused the breakdown of social responsibility and ultimately
destroyed the Second Jewish Commonwealth. When Jews of that period refused to
act above and beyond the requirement of din, they became selfish and
intolerant, lost identification with each other, thus rendering the Jewish people
defenseless against the Roman Empire. "Standing upon din entailed
Nahmanides warns that exclusive concern with legal detail can lead to myopia
depriving a person from recognizing the overarching ideals of both the spiritual
and the moral life. Without these tele to guide sensibility and action,
the halakhic positivist can become a spiritually confused, despicable individual
(naval b’reshut ha-Torah). And in perhaps the harshest critique of all,
Maimonides--arguably the greatest master ever of halakhah--claims that
the life of strict legal obedience without the tempering virtue of compassion
to motivate extra-legal acts of hesed is a life destined to practice
cruelty. This is the antithesis of the Jewish spiritual vision, and its philosophical
formulation is ultimately pagan in outlook and action.
The positive correlate of these critiques is that correct Jewish living consists
of a delicate blend of law and extra-legal ethics, of din complemented
by hesed. Compassion without binding law may be impotent, but legal obedience
without hesed is blind. Kabbalistic tradition teaches that tiferet
(glory) is achieved only when gevurah (law) combines with gedulah
(hesed). As in much of kabbalah, this merger of divine attributes
is a cosmic reflection of the ideal life that each Jewish person is challenged
to create on earth. The successful spiritual personality blends a principled
responsiveness to heteronomous law with the practice of imitatio dei
through an autonomous overflow of rahamim that manifests itself in innumerable
unlegislated acts of hesed.
The talmudic passage in Sotah 14a teaches us noble behavior through
imitating God’s acts of hesed. Living the holy life also entails imitating
divine aspiration. To what does God aspire? Again, tradition provides rich insight
into a spiritually elevated character, both divine and human:
What does the Holy One Blessed Be He pray?
Mar Zutra said in the name of Rav:
"May it be My will that My mercy suppress My anger,
and that My mercy prevail over My other attributes
so that I may deal with My children out of mercy and
act above and beyond the strict requirement of the law."
(BT, Berakhot 7a)
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
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 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
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 discretion in halakhah, see A. Kirschenbaum and N. Lamm, "Freedom
and Constraint in the Jewish Judicial Process," Cardozo Law Review, 1 (1979),
9. Soft positivism admits to the 'open texture,' i.e. non-formal, nature of
law. See Hart, pp. 120-132.
10. For an exploration of meta-ethical issues of moral language, see G.E. Moore,
Principia Ethica (London: Cambridge University Press, 1966). For an analysis
of some meta-ethical considerations in Jewish law, see my "Ethics and Jewish
Law," Judaism (24:2) Spring 1975, pp. 201-214.
11. Of course the phrase, "heavenly court" is merely an inaccurate
metaphor for divine judgment. The significance of the entire Talmudic passage
rests on the assumed tension between the absence of grounds for juridically
determinable legal liability and non-legal divine disapproval. On what din could
a court-heavenly or otherwise-convict?
12. For five excellent and sometimes contrasting explications of lifnim mishurat
ha-din, see Saul Berman, "Lifnim Mishurat Hadin," Journal of Jewish
Studies, 26 (1975) pp. 86-104 and 28 (1977) pp. 181-193; Aaron Kirschenbaum,
Equity in Jewish Law, (KTAV; Hoboken, NJ, 1991) pp. 109-136, 213-221; Lichtenstein,
op. cit., pp. 102-123; Shmuel Shilo, "One Aspect of Law and Morals in Jewish
Law: Lifnim Mishurat Hadin," in Israel Law Review 13, (1978) pp. 359-390,
and E.E. Urbach, The Sages-Their Concepts and Beliefs, (Jerusalem; Magnes, 1975)
pp. 330-333, II 830-833.
13. Lichtenstein, pp. 114-116
14. In addition to the cases cited, the other cases in the BT are found in Bava
Mezia 30b (the dignity of an elder), Ketubot 97a (the rescission of a contract
of sale), Bava Metsi`a 24b (the presumptive abandonment of lost property), and
Berakhot 45b (participation in public grace after meals, "zimun").
15. Note that Rav appears as an assistant to Rav Hiyya in the prior case of
lifnim mishurat ha-din cited in Bava Qama 99b. Rav Hiyya, Rav, and Rabbah bar
Bar Hanan were all related. The relationship of these three personalities is
significant for the understanding of this text and will be discussed in Section
16. See Rif , ad. loc, who identifies the amora as Rav
Huna, rather than Rabba bar Bar Hanan. The standard editions contain a simple
response "In" to the question perhaps indicating an affirmative reply
to the question, "Is it the law [din]?" Rif's text is "In af,"
i.e. "Even so" or "Nevertheless," implying that it is not
the din. Urbach, p 331, notes that early manuscripts of this passage and the
texts used by some rishonim do not contain the response, "In." Cf.
Yalkut Shimoni, Proverbs 20:2, and the parallel account in Palestinian Talmud,
Bava Metsi`a 6,8, neither of which contain the positive response. See also Shilo,
pp. 380. Bibliographical, logical and legal reasons all strongly support either
an implicit negative (no direct) response or explicit negative response ("In
af" - "Nevertheless") as the correct version.
17. Maimonides, Mishneh Torah , Hilkhot S'khirut [Laws of Hiring] 3:2
18. See Tosafot Bava Qama 100a (s.v. 'lifnim mishurat ha-din')
19. This interpretation follows the exposition of R.
Joel Sirkes, (Bah) on Shulhan Arukh, Hoshen Mishpat 12:4 and 304:1, who maintains
that lifnim mishurat ha-din applies when the defendant is wealthy and the plaintiff
20. See also the related discussion in Sanhedrin 6b regarding whether adherence
to strict law or compromise (bitzuah) is the most desirable way to resolve disputes.
Similar to the conclusion of our cases, normative Jewish practice follows the
view of Yehoshua ben Korkha who advocated compromise.
21. See also Shulhan Arukh, Hoshen Mishpat 259:5.
22. One Aramaic reference for Torah, "rahmana" (compassion) supports
R. Simlai's claim. The application of the term, "rahmana" to Torah
is actually an extension of its primary referent, God.
23. The analytic linking of lifnim mishurat ha-din with hesed is also indicated
in the prior discussion in Bava Mezia 30b that finds an exegetical allusion
to both concepts in Exodus 18:20.
24. Nahmanides, commentary on Lev 19:2.
25. Walter Wurzburger, Ethics of Responsibility, (Jewish Publication Society;
Philadelphia 1994), Chapter Five
26. See Norman Lamm, "Ha-chakham Ve'ha-Hasid Be'mishnat ha-Rambam"
("The Sage and the Saint in the Thought of Maimonides") in Dr. Samuel
Belkin Memorial Volume, (1979)
27. See also Guide, 3:54 and Avot 2:10 and 5:6
28. Translation in accordance with the interpretation of Metzudat David.
29. See I. Twersky, Introduction to the Code of Maimonides (New Haven: Yale
University, 1980) Introduction and Chapter V.
30. See Zohar, Book II and commentary of R. Elijah of Vilna (GRA) to Book of
Creation (Sefer Yetzirah), Chapter I.
31. Note that the rationalist Maimonides conceptualizes hesed similarly in his
definition in the Guide 3:53 quoted earlier.
32. This sharpens the issue in Sotah 14a. If din is symbolized by fire, the
Talmud is contrasting din ("God is a devouring fire") with acts of
33. 1785-1841. R. Zvi Elimelekh is known by his major work, Benei Yissakhar,
which contains the above point in Ma'amar Hodesh Sivan, Ma'amar 5 (Sayings on
the Month of Sivan, Saying 5).
34. This connection is borne out etymologically, being an example of the known
phenomenon of Hebrew grammar where the same verb root takes on contradictory
meanings. The Hebrew root, G-M-L, in intensive form (pe-al) means to wean (see
Genesis 21:8) and in simple (qal) form is used to denote the dispensing of hesed
(gemilut hesed). The image of a woman breastfeeding an infant is the most graphic-and
poignant-image of the overflow of one person's being into another that sustains
35. Leqakh Tov to Megilat Ruth, end. Pertinent also is the following: "Said
R. Zeira, 'This scroll has no [laws of] ritual impurity or purity, and no [matter
of] prohibition or permission. Why was it written? To teach how great is the
reward to those who dispense hesed!'" Midrash Ruth Rabbah 2:15
36. See also Rambam, Guide III: 53 and 54 who builds on this theme.
37. I am indebted to R. Yitzchak Breitowitz for this insight. See his "Preventing
Divorce: How Judaism Nourishes the Family," in Agenda - Jewish Education,
38. Maimonides also recognized these theological and moral implications of the
motif of creation. As we saw, he cites the statement of Job-"Did not He
who made me in the belly make him? And fashion us both in one womb?"- in
Laws of Servants 9:8 to support extending hesed to gentile servants. Note also
the etymological connection between womb (rehem) and loving compassion (rahamim).
Metaphorically, God is the compassionate 'mother' giving birth to all humanity.
I am indebted to R. David Hartman for this observation.
39. R. Yitzhak Twersky, "Make a Fence Around the Torah," Torah u-Madda
Journal Vol. 8, 1999, pp. 33-35
40. See Walter Wurzburger, "The Philosophy of Rav Joseph B. Soloveitchik"
in Hazon Nahum, Y. Elman and J. Gurock eds., Yeshiva University: New York 1997,
41. R. David Kimchi (RaDaK), commentary on Psalms 15:5, unedited edition published
by Avraham Darom (Jerusalem: Mossad Harav Kook, 1967). For a fuller exposition
of the Jewish-Christian debate over the nature of the prohibition of charging
interest, see A. Kirschenbaum, "Jewish and Christian Theories of Usury
in the Middle Ages," Jewish Quarterly Review 75 (1985) 270-298.
42. Kirschenbaum, Equity, p. 20. For examples of talmudic provisions, see pp.
43. Deut. 23:20-21
44. BT Makkot 23b; Mishna Hulin 7:6, Rashi and Maimonides, Commentary on the
Mishnah, ad loc.
45. See Nahmanides commentary on Gen. 26:5 and Lev. 18:25, and R. Naftali Zvi
Yehuda Berliner (NeZiV), Ha'Ameq Davar, Introduction to Book of Genesis.
46. Lichtenstein, pp. 114-115.
47. Kirschenbaum, Equity, pp. lx.-lxi.
48. Lichtenstein, p. 116
49. Maimonides, Mishneh Torah, Hilkhot Avadim [Laws of Servants], op cit; Shulhan
Arukh, Yorah Deah 159:1.
50. See note 16, and note 1 of R. Bleich op cit. R. Bleich's argument relies
strongly on the text containing "In" i.e. an affirmative response
to the query whether the directive is law. He therefore is dismissive of the
stronger bibliographic evidence to the contrary. Even more than the bibliographical
evidence, the critical argument lies in the coherence of the interpretation
of non-enforceability over the logical and legal difficulties in interpreting
Rav's response as a legally binding psaq din. In another article, "Judaism
and Natural Law," Jewish Law Annual Vol. VII (1988), pp. 7-10, R. Bleich
similarly relies on an incorrect version of Maimonides, Mishneh Torah, Hilkhot
Melakhim [Laws of Kings] 8:11 to argue against the concept natural law in Jewish
tradition. See my "Gentiles, The World to Come and Judaism: The Odyssey
of a Rabbinic Text" in Modern Judaism 14 (1994) pp. 265-287.
51. "Divrei Torah mi'divrei kabbalah lo yalfinan." See Shilo, p. 255.
Judge Moshe Silberg, "Law and Morals in Jewish Jurisprudence," Harvard
Law Review (1961), p. 122, points out that the verse from Proverbs was used
rather than a Pentateuchal verse to emphasize the ethical, non-legal aspect
of Rav's directive.
52. The text describes Rabbah bar Bar Hanan taking direction from his cousin,
Rav, rather than being ordered by a formal bet din. As such, the plain meaning
of the text is that Rav-a nephew and student of R. Hiyya, who as we saw in the
case cited from Bava Qama 99b advocates voluntary action in accordance with
lifnim mishurat ha-din-successfully exercised moral suasion on his cousin. The
logical difficulties attendant to this latter interpretation may have convinced
the majority of rabbinic authorities to interpret Rav's response as unenforceable
moral suasion. See Kirschenbaum, Equity, p. 123, Be'er Eliyahu, Hoshen Mishpat
12:2, and Silberg p. 121. For the normative halakhah, see R. Yosef Caro, Bet
Yosef, Hoshen Misphat 12:8.
53. Commentary on BT, Bava Metsia 24b. See also Shilo pp. 236-366.
54. Mishneh Torah, Hilkhot Gezelah V'avedah [Laws of Theft and Robbery] 11:7.
55. For an examination of the concept of conscience in traditional Jewish sources,
see A. Brill, "Do Jews Have a Conscience?" (unpublished manuscript)
56. See, R. Moses Isserles (RaMaH), gloss on Shulhan Arukh, Hoshen Mishpat 12:2,
and Kirschenbaum, Equity, p. 124-125 for the positions of various Ashkenazic
57. See S. Y, Cohen "Lifnim Mishurat Hadin" in the Adam Noah Braun
Memorial Volume (Jerusalem, 1969) p. 166, who cites R. Sa'adia Gaon as claiming
that because of Lev. 19:15, a judge is not permitted to decide in this manner.
If he did so-as the halakhic hard positivist maintains he must-he would be committing
injustice. Ch. Albeck, "LeOfyan Shel Ha'Halakhot b'seder Nezikin"
(The Character of the Laws in the Order Nezekin), Torah She-Ba'al Peh, Vol.
4, pp. 23-25, comes to the same conclusion.
58. See Shilo p. 369.
59. Wurzburger, Ethics of Responsibility op. cit, chapter 1
60. Aristotle, Nichomachean Ethics, 5:10; Maimonides, Guide 3:34, Hart, Ch.
VII, Lichtenstein p. 115. See also K. Greenawalt, Law and Objectivity (New York
Oxford University 1992) Chapter 8.
61. The 'soft' positivist Hart (Chapter VI) maintains that valid legal rules
must be subject to a "rule of recognition" and " rules of adjudication."
The failure of lifnim mishurat ha-din in the form of specific action to appear
in classic halakhic codes or catalogues indicates that it does not pass Hart's
"rule of recognition" criterion. Rules whose fulfillment and violation
are "undetectable by any human court," and standards that are "objective
and mandatory only in the eyes of the Deity" fail Hart's adjudicability
test. The analytic talmudic school would fully agree with these requirements.
62. See R. Joseph B. Soloveitchik, Halakhic Man (Philadelphia; Jewish Publication
Society 1983) p. 79.
63. This author was present at a recent conference when R. Bleich insisted that
hesed play no role resolving cases of agunot, claiming 'Such cases should be
handled with the full rigor to the law. We should not utilize hesed.'
64. R. Feinstein accepts qiddushei ta'ut as basis for freeing an agunah in Even
Ha-Ezer 1:79 and 4:113.
65. R. Klatzkin accepts get zikui for freeing an agunah in Milu'ei Even, 29.
66. See Tradition 32:1 p. 99 (Fall 1997) for his rejection of NY State Get Law;
Tradition, 33:1 (Fall 1998) pp. 90-128 for qiddushei ta'ut; and Tradition 35:4
(Winter 2001) pp. 49-73 for the rejection of get zikui.
67. Masat Binyamin 109. See also R. Shmuel Edels (MaRSHAh) end BT Yevamot, R.
Hayim Volozhin, Hut Ha-Meshulash 8, and Yitzhak Zev Hahana, Le-Takkanat Agunot
(Jerusalem, 1947) passim, as cited by R. Aharon Lichtenstein in "The Human
and Social Factor in Halakha," Tradition 36:1 (Spring 2002) pp. 7-8.
68. Lichtenstein, ibid.
69. Such halakhic positivism would have difficulty explaining the overarching
tele or ends of the halakhic system as postulated by Nahmanides and Maimonides.
Rational purposiveness is, after all, a characteristic of natural, rather than
positive, law. See Martin P. Golding, Philosophy of Law (Englewood Cliffs, NJ;
Prentice Hall 1975) Chapter 2.
70. R. Bleich relies on the opinions of Ravan and Ravya on the enforceability
of lifnim mishurat ha-din. As indicated earlier, these opinions are rejected
as normative law. He similarly cites R. Isaac of Corbeille (Sefer Mitsvot Qatan)
who lists lifnim mishurat ha-din, as one of the 613 mitsvot. As we saw, this
codification was rejected by both Maimonides and Nahmanides
71. It is difficult to see how a hard positivist could ever square, "Derekh
eretz qadmah la-Torah" ["Civility precedes the Torah"] (Avot
3:17), with his thesis. For the classic-and anti-positivist-understanding of
this statement, see Lev. Rabbah 9:3 and Tanna Debei Eliyahu Rabbah, chapter
1. R. Bleich does try to explain, "Jerusalem was destroyed only because
Jews judged according to the laws of the Torah" (Bava Mezia 30b), but ignores
the clear meaning of this text (pp. 527-528) and employs a circular argument
to this passage to establish his conclusion: Because the Jewish people incurred
divine punishment for ignoring the standard of lifinim mishurat ha-din, he concludes
this standard is not a moral but a legal category. He thus assumes that any
value to which people are held accountable is legal-but this is precisely what
is to be demonstrated.
72. As noted, the positivist first cites Sefer Mitsvot Qatan as proof that lifnim
mishurat ha-din is "normative and binding." When later forced to admit
that this is a minority opinion that is rejected by later authorities who catalogued
mitsvot, the positivist claims curiously that, "in all cases, inclusion
or exclusion from the formal catalogue of 613 mitsvot is entirely devoid of
substantive import" (p. 528).
73. Maharal, Netivot Olam, Chapter 5. See also the depiction of events leading
to the destruction of Jerusalem in BT Gittin 55b-56, and R. Naftali Zvi Berliner,
Ha'Ameq Davar, op cit.