Jewish Tradition on Ethics Beyond the Law: Revisiting R. Aharon Lichtenstein’s Essay, “Does Jewish Tradition Recognize an Ethic Independent of Halakha?”

^[1]As a mode of life, religion is often expected by its adherents and critics to guide toward the good and deter from the bad. Halakha, the observance of which is the principal fulfillment of Judaism, is supposed to be related to the fulfilment of the ethical. But what exactly is that relationship?

That is the question of R. Aharon Lichtenstein’s article, “Does Jewish Tradition Recognize an Ethic Independent of Halakha?”^[2] His answer is that the relationship is one of inclusion: ‘The ethical moment we are seeking is itself an aspect of halakha.”^[3]

The nuances of this inclusion depend, for R. Lichtenstein, on the specific primary rabbinic source under examination. The term taken to imply a legal appeal to the ethical is lifnim meshurat ha-din– beyond the letter of the law. From R. Isaac of Corbeille’s work Sefer Mitzvot Katan, which lists the obligation to behave lifnim meshurat ha-din as one of the 613 biblical commandments, R. Lichtenstein draws the most “rigorous” version of inclusion. Other medieval scholars do not give lifnim meshurat ha-din (or the analogous concept they prefer to discuss, such as imitatio dei for Maimonides) as important a role within halakha as being one of the 613 biblical commandments. The Rosh, for example, gives lifnim meshurat ha-din such an unimportant role that he deems whatever imperatives the category may create as un-actionable in a court of law. The overwhelming thrust of the sources, however, is that “traditional halakhic Judaism demands of the Jew…commitment to an ethical moment that [is]… in its own way fully imperative.”^[4]

Halakha, for R. Lichtenstein, is an ambiguous term. It can refer narrowly to din (law) only, whereby “everything can be looked up, every moral dilemma resolved by reference to code or canon.” This conception of halakha, unsurprisingly, does not include many of the ethical imperatives we would expect a legal system that is concerned with morality to contain. However, halakha can also refer more broadly both to din and to lifnim meshurat ha-din. This conception of halakha allows for an ethic not identical to halakha, narrowly construed, that halakha, broadly construed, recognizes.

Presumably, it is coherent to refer to both by the term halakha for their obligatory nature. What distinguishes lifnim meshurat ha-din from the narrow boundaries of halakha is the degree of its obligation and, more significantly, its flexibility. While din “imposes fixed objective standards,” lifnim meshurat ha-din evolves from “a specific situation and, depending upon the circumstances, may vary with the agent.”^[5]

So far we have summarized R. Lichtenstein’s main argument. His thesis has the virtue that it establishes an inclusive relationship between ethical imperatives and Jewish norms, but it does so while maintaining them distinct from narrowly construed law. Because of the balance he strikes between those two considerations, critical responses to R. Lichtenstein’s take do not abound. However, here we will discuss three critics of R. Lichtenstein’s thesis.

1. J. David Bleich contests R. Lichtenstein’s view that lifnim meshurat ha-din can be divorced from din.^[6] The subcategories that fall under the category of lifnim mishurat ha-din, R. Bleich insists, are clearly objective and “are themselves encompassed within the corpus of Halakha.”^[7] While R. Bleich concedes that “of course”^[8] there is an ethic beyond the recorded halakha, he believes that the content of this ethic is formulated in the Aggadah rather than the halakha, to the extent that it is recorded at all.

This brings us to the methodology R. Lichtenstein employed in this article. In order to uncover what “Jewish tradition” recognizes, he surveyed a specific class of texts in the Jewish tradition. Namely, R. Lichtenstein’s analysis draws from the writings of medieval halakhists and their predecessors. This bibliography is not surprising; his topic self-selects in this way. When he asks what Jewish tradition says about halakha, R. Lichtenstein is predetermining that his discussion will be about traditional Jewish sources that spoke about halakha – namely, medieval halakhists and their predecessors.

But there is perhaps a more significant reason that R. Lichtenstein stays within this specific genre of literature: this is his view of what halakha is. For R. Lichtenstein, the nature of the religious experience in Judaism is that of normativity. As he writes, “The Jew is, first and foremost, a summoned being, charged with a mission, on the one hand, and directed by rules, on the other.”^[9] Since the religious experience is a predominantly legal one, and the pursuit of the ethical is, as our opening hypothesis states, a religious experience, it stands to reason that the content of the ethical be included in the corpus of halakhic content. This may be what motivates R. Lichtenstein to keep the ethic for which he searches within the legal realm, even if broadly a defined one, and not place it in the Aggadic realm as does R. Bleich.

We turn to a second critique, which argues that in fact Judaism does recognize an ethic that is independent of halakha. R. Asher Meir writes that although R. Lichtenstein argues that “moral obligations per se are superseded by a Torah commandment to act ethically,”^[10] there is evidence that areas of natural morality are not subsumed under any other halakhic category. His evidence is drawn from somewhat different types of sources than the ones R. Lichtenstein used. The examples R. Meir provides of “large swathes of natural morality” that “remain outside not only the halakhot themselves but also beyond what is included by lifnim mishurat ha-din”^[11] are not the specific wording of medieval scholars.^[12] Rather, they are the products of observations combined with logic. One example is debating with God in the face of apparent injustice as Abraham and Moses did. On this, R. Meir asks rhetorically, “Was this ethical principle subsequently subsumed into Halakha at Mount Sinai?”^[13] Another example: the requirement to adhere to agreements, which cannot originate in the Torah “for the simple reason that our obligation to keep the Torah originates in it.”^[14] Thus, instead of integrating all ethical imperatives into Halakha, R. Meir concludes that “the tension between ethics and halakha remains.”

Finally, we mention a critique R. Lichtenstein raises himself:

[Isn’t] this exposition mere sham? Having conceded, in effect, the inadequacy of the halakhic ethic, it implicitly recognizes the need for a complement, only to attempt to neutralize this admission by claiming the complement has actually been a part of the Halakhah all along, so that the fiction of halakhic comprehensiveness can be saved after all.^[15]

1. Lichtenstein ultimately resolves his own challenge by pointing out three concrete ramifications of including within halakha the heretofore independent ethic. First, by including the ethical within the halakhic, technical exemptions of lifnim meshurat ha-din are decreased. While the din-level law would have excluded some cases due to legal technicalities, the lifinim mishurat ha-din extension of halakha legislates to include those cases as well. The second ramification is providing halakhic context for ethical decisions. The third, and perhaps most significant ramification is that the marriage of Jewish law and the ethical creates a framework within which the Jew can “integrate” his or her “whole self.”^[16]

For R. Lichtenstein, then, one of the more significant virtues of his view is that halakha, with his broad conception, can reflect the “full range of personal activity”– the totality of a person’s being.^[17] This recalls R. Lichtenstein’s religious ontology of the Jew that we have already cited: “first and foremost, a summoned being, charged with a mission, on the one hand, and directed by rules, on the other.”^[18] All actions, whether legal or ethical, exist only with relation to the will of the “commanding Taskmaster,” who deems them obligatory or optional, permitted or forbidden. Halakha is “the quintessential devar Hashem (word of God),”^[19] and inasmuch as the devar Hashem points to good and bad, in addition to musts and must-nots, it points there through the halakha.

            David Rubinstein is a Yeshiva College senior majoring in philosophy and economics.

^[1] I thank my friend and teacher Avraham Wein for the motivation to write this article and much of the information contained herein. I also thank my friend and colleague Yair Strachman for his time and willingness to discuss some of the content of this article.

^[2] Aharon Lichtenstein, “Does Judaism Recognize an Ethic Independent of Halakha?” in Modern Jewish Ethics: Theory and Practice, ed. by Marvin Fox (Columbus, OH: Ohio University Press, 1975) 62-85.

^[3] Lichtenstein, 70.

^[4] Lichtenstein, 83.

^[5] Lichtenstein, 79.

^[6] J. David Bleich, “Is There an Ethic Beyond Halacha?” in J. David Bleich, The Philosophical Quest: of Philosophy, Ethics, Law and Halakhah (Jerusalem: Maggid Books, 2013), 125–141.

^[7] Bleich, 133.

^[8] Bleich, 141.

^[9] Aharon Lichtenstein, “Why Learn Gemara,” in Aharon Lichtenstein, Leaves of Faith v. 1 (Jersey City, NJ: Ktav, 2003), 1-17, at 3.

^[10] Asher Meir, “Does an Ethic Independent of Halakha Remain an Autonomous Source of Obligation?” in That Goodly Mountain, ed. by Reuven Ziegler, Shira Schreier with Dov Karoll, Yitzhak S. Recanati, (Alon Shevut, Israel: Yeshivat Har Etzion, 2012), 41-47, at 41.

^[11] Meir, 46.

^[12] This is true also by design of the argument. R. Meir’s argument is from omission, so finding medieval scholars is not in line with the form of his argument.

^[13] Meir, 46.

^[14] Meir, 46.

^[15] Lichtenstein, “Does Jewish Tradition Recognize an Ethic Independent of Halakha,” 76-7. He also formulates another objection before this one but due to the structure of this exposition it is not relevant at this point.

^[16] Lichtenstein, 81.

^[17] Lichtenstein, 82.

^[18] Lichtenstein, Leaves, 3.

^[19] Lichtenstein, Leaves, 4.