Halakha and Morality: The Theoretical Picture (Column 541)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

About two weeks ago I watched the film “A Priest’s Wife” on the Ma’ale School of Television, Film & the Arts website. The film presents a situation in which the wife of a kohen (priest) is raped, and a discussion ensues as to whether she can be permitted to remain with her priestly husband. I often cite the rule that a raped priest’s wife must separate from her husband as an example of a head-on collision between halakha and morality, and I think this film has added value in that context. I will devote two columns to this topic. In this column I will sketch the picture of the relationship between halakha and morality as I see it, and in the next column I will turn to discuss the film and the issue of a raped priest’s wife through that prism.

Halakha and Morality: Three Halakhic Categories

I have already addressed the relationship between halakha and morality (see, for example, in Column 15, and in greater detail at the beginning of the third book of my trilogy), but to my surprise, when I looked now I saw that I have not yet done so systematically here on the site.[1] Therefore, at the outset I will present my view more systematically, albeit briefly.

In this context, halakha can be divided into three categories: moral laws, a-moral laws, and anti-moral laws. Moral laws are laws that accord with moral principles, such as “You shall not murder,” “Honor your father and your mother,” charity, and the like. A-moral laws are laws that have no connection to morality, such as most dietary prohibitions (pork, orlah, chametz, and the like), ritual purity and impurity, Shabbat, all matters of sacrificial rites, and land-dependent commandments (perhaps excepting gifts to the poor), and so forth. These laws appear morally neutral and seemingly do not belong to the moral sphere at all. Anti-moral laws are those that clash with moral principles, such as the obligation that a raped priest’s wife separate from her husband, the killing of Amalekite infants, not saving a gentile on Shabbat, and the like. I will note that there are not many such laws, and it is quite clear that this is the smallest of the three categories. Still, the very existence of this category is what arouses the difficulty and the discussion about halakha and morality.

From the very existence of laws of the third kind, it would seem that God is not moral and does not demand that we be moral. True, there is a category of moral laws, but that could be coincidental. If He were moral, we would expect a complete match between halakha and morality. One can also see a problem of sorts in the second category, since it, too, indicates that not only morality matters to God and to the Torah. And it seems that even in the first category one can identify problems, since there too there are differences between the directives of morality and those of halakha. For example, in the laws of homicide, halakha distinguishes between “what is closer to the fire or closer to the object,” and discusses a killer by indirect causation (grama), a “metzamtzem,” and the like—distinctions that have no moral significance. From a moral perspective, one who murders with his left hand or opens a door for water or fire to kill someone is fully a murderer; yet halakha makes such distinctions.

These claims are, of course, not new. For example, the Maharal in Be’er HaGolah, Second Be’er (pp. 31–32 in the standard edition of the Maharal’s works), points to a difference between halakha and morality regarding the laws of returning lost property—seemingly belonging to the first category. He brings one example where halakha is stricter than morality and another where morality is stricter than halakha:

In Bava Metzia ch. 2 (21b) they said there that one is not required to return a lost item after the owner has despaired (ye’ush). This seems far-fetched to people: that a person takes what is not his, for which he did not toil or trouble himself, and covets another’s property. This is not in accordance with the “religion of civility” (dat ha-nimusit), for that code obligates returning the lost item even after the owner has despaired of it.…

And at times the “religion of civility” is exceedingly lenient… Therefore, according to that code, one must return a lost item after the owner’s despair, and this is a stringency. Conversely, if one found silver or gold vessels and announced them once or twice and no one claimed the loss for a year or two, he keeps them for himself and uses them, for there is no “repair of the world” (tikkun ha-olam) in returning them after he has announced them several times and waited a year or two or more; no one will come. But this is not in accordance with the Torah, for if one found silver or gold vessels and announced them many times, they are forbidden to him forever. Rather they must remain deposited until Elijah comes; he must never touch them. See how very strict [the Torah] is…

Halakha allows a person to take a lost item after the owner’s despair, even though morality obligates returning it. That is a stringency of morality compared to halakha. Conversely, if a person found very valuable items with identifying marks before the owner despaired, then even if the owner does not appear for many years, he must guard the items and not use them. That is a halakhic stringency, since morality would say there is no point in wasting such valuable items; if it is clear the owner will not receive them, there is no reason to keep them, and there is even a consideration to allow their use so at least someone benefits from them.

Halakha and Morality: Basic Approaches

For our discussion, let us begin with the third category. Several approaches can be found to reconcile the tension between non-moral halakhot and morality. I would divide them into three principal directions:

1. Morality is a category without authority. According to this approach, from a Torah perspective there is no place for another normative category beyond halakha, and therefore moral imperatives have no authority. We observe moral halakhot because halakha commands them, not because they are “moral,” but a moral command as such has no independent force. Halakha represents all our obligations. According to this view, one could even say that being obligated to morality alongside halakha is a kind of idolatry, for it is a commitment to another source of authority besides God.

Leibowitz wrote that morality is an atheist category, and that is apparently what he meant. Many have wondered, however, how he rebuked us for immoral behavior (the “occupation,” etc.) if this is an atheist category. As a believer he should not have been bound by it. I believe I once saw an article by Eliezer Goldman explaining that his intent was that this is a category not related to halakha and the divine will, but it obligates the religious person just like the secular one as a parallel category. Yet this is essentially a dualistic conception—commitment to two distinct sources of authority—what in halakhic jargon is called “shituf.”[2] I will return to the idea of parallelism below.

This approach seems very problematic. The Torah itself instructs us to “do what is right and good,” and it rebukes Cain for murder even before there was a command forbidding it. The Torah contains quite a few directives that clearly show morality matters to it.

2. Halakha encompasses morality. According to this approach, behind every halakha that appears to contradict morality lies a deep moral explanation that we presumably do not grasp. Halakha is the true moral command, and if morality seems to contradict halakha, that is an error in our understanding of morality. One must understand that on this view, there may be halakhot of the second category, but there are no halakhot of the third (those that contradict morality—the contradiction results from misunderstanding). According to this view, halakha has moral aims that are expressed in laws of the first type, but laws of the second type pursue other values. Laws of the third type certainly do not contradict morality, but it may be that they, too, pursue other (non-moral) values.

This approach also seems problematic on its face. For example, halakha forbids saving the life of a gentile on Shabbat. What moral explanation could align with such a prohibition? Is there no value to human life, even that of a gentile? Similarly with the separation of a raped priest’s wife from her husband. The assertion that a deep moral principle unknown to us lies behind this sounds like empty evasion. Either one defines morality by halakha (see on the Euthyphro dilemma in Column 457), or one empties morality of content, because it is not really what we think it is. In that case it is merely an empty definition. Each of us knows what is moral and what is not, even in these situations. I do not see how one can claim that manifestly non-moral directives are the ultimate morality. It is reminiscent of Orwellian brainwashing: “Slavery is freedom, ignorance is strength,” etc.

In passing I will note that the implicit assumption here is that there is no such thing as “Jewish morality” or “divine morality.” Morality is morality is morality, and it is universal by definition. That does not mean there are no moral disputes, but in such disputes there is a right and a wrong answer; hence there is no meaning to adding an adjective like “Jewish morality” or “Christian morality.” There is morality, and we all understand what it says (save for marginal disagreements). See more on this in the appendix to this column.

3. Halakha is morality. R. Kook apparently held such a view, and therefore in several places he went so far as to claim that all of halakha is nothing but morality. He essentially denies even the existence of the second category (a-moral laws). In his view, all that halakha seeks to achieve is morality, and in the latter two categories—those that seem disconnected from moral considerations or even to contradict them—that is merely our erroneous interpretation. At bottom there is a moral idea. In a sense, for him there is no halakha, only morality, and what we call “halakha” is ultimate (divine) morality.

This approach also seems problematic, since vast swaths of halakha appear unrelated to morality in any way. The moral explanations R. Kook proposes for various halakhot, for example in his LeNevuchei HaDor, seem very forced and far from satisfying as interpretation.

We therefore seem to face a broken cistern. How, nonetheless, can we understand the relationship between halakha and morality in a way that is both reasonable and convincing rather than forced, and also fits the facts (what we find in the Torah and halakha)?

Religious Values and Moral Values

I believe the solution lies precisely in reflecting on the second category, the a-moral laws. If we do not accept the speculations about hidden moral values underlying them, the natural conclusion is that the Torah has other aims—non-moral values—and these laws come to achieve them. Let us call them “religious values.” The prohibition against eating pork, or the laws of sacred offerings, do not come to achieve moral aims or realize moral values, but to achieve religious aims. What exactly are those aims? I do not know. For all I care, it could be “rectifying eternity in Hod,” or assisting God in some obscure spiritual matter. I truly do not know, but the existence of such laws indicates this is the case. At times it is easy to identify such aims; for example, the laws of sacrificial worship are intended to bring the Shekhinah to dwell among Israel. That is not a moral goal but a religious one, and the values realized by these laws are not moral values. Prohibitions like pork or orlah are harder to understand.

But even with regard to sacrifices, it is not clear why they are offered specifically in the ways halakha defines—that is, the details of the laws in these areas also remain unclear, apparently aimed at achieving religious objectives or values. I have often been accused that this conclusion is irrational or illogical, but I think that accusation is baseless. A rational person should accept conclusions that follow from facts and good arguments even if he does not understand them. Therefore, the fact that I do not understand those aims does not mean they do not exist. For example, we do not grasp quantum theory either, but the facts indicate it is likely correct. Should we reject it because it contains elements we do not understand?! I previously cited the story of a fellow from our yeshiva who suffered from hepatitis for about half a year; when they brought him a “witch” who placed pigeons on his navel, the pigeons died and after a few days he recovered and returned to the yeshiva. Should a person with a rational approach disbelieve the story? In my view, if the witnesses were reliable (and they were), one must accept the story and seek a rational explanation for what happened. That is a rational approach, as opposed to a rationalist approach that refuses to accept unintelligible phenomena even when they have a strong, reliable basis.

So too with a-moral halakhot. Their existence can be explained in two ways: either moral aims underlie them that I do not understand, or other types of aims underlie them. Since we understand morality well, saying there are unknown moral aims here is implausible. The natural conclusion is that there are other aims—namely, that the Torah strives toward religious values. This conclusion is not fully intelligible, but at least it is not absurd. As Sherlock Holmes said, after eliminating the impossible, what remains—however improbable—must be the truth. That is the meaning of the second category (the a-moral laws). We can now also understand the meaning of the remaining two categories.

The Meaning of the Third Category

I will begin with the third category. If indeed the Torah strives toward religious values, then there is no need to seek a moral reconciliation for the laws of this category. It may be that they, too, pursue religious values, except that in their case this pursuit harms moral values. Such conflicts do not constitute a logical—nor even a moral—problem. Often, striving for one value comes at the expense of another, and it is impossible to fully realize both. In such a case we must decide which value prevails and be prepared to pay in the coin of harming the other value.

Even when only moral values are involved, such conflicts exist. Often there are clashes between moral value A and moral value B, and we must decide which prevails. Therefore, if our arsenal of values includes both moral and religious values, there is no impediment to a clash arising between a religious value and a moral one, and there too we must decide which prevails. But the mere existence of a clash poses no problem—neither logical nor ethical. My well-known chocolate parable illustrates this: Reuven says it is worthwhile to eat chocolate because it is tasty, while his colleague Shimon says it is not worthwhile because it is fattening. Who is right? Both. There is no contradiction: chocolate is both tasty and fattening. Do you see a logical problem in that claim? Certainly not. The question is what to do in practice; that is a conflict, not a contradiction. A person must decide which value prevails for him—pleasure or health. The existence of such a conflict is not a logical or other problem, only a practical dilemma. Moreover, one who decides to eat the chocolate is not thereby indifferent to health, just as one who refrains is not necessarily indifferent to pleasure. Each can be fully committed to the “values” of pleasure and of health, but in practice he must choose what to do.

So too with a clash between a religious and a moral value. Consider the raped priest’s wife: the religious obligation to preserve priestly sanctity requires her to separate from her husband, even though moral values say that obligating them to do so is a moral wrong. Even if we decide to require them to separate, that does not mean the Torah or God is indifferent to moral values. Certainly morality is important in their eyes (“Do what is right and good,” etc.), but the religious value overrides the harm to the moral value. The same with saving a gentile on Shabbat: the religious value of Shabbat observance overrides the moral value of saving a life.[3] Does that mean the Torah is indifferent to moral values? Absolutely not. This is a complete solution to the halakha-and-morality difficulty, even if it does not resolve the practical conflict. I will not enter into that here; I will only say that in most cases halakha will prevail, but not in all. I discussed this extensively at the beginning of the third book of the trilogy and in my lecture series on halakha and morality (and a bit in Column 15, where I distinguished between incidental and essential conflicts. I will not enter into that here).

Sectarian (Secular) Critique

Yisrael Shach was a Jerusalem chemist who liked to level harsh critiques at halakha and the religious. Among other things, he published cases (at least some of them fictitious) about a gentile who was left to die so as not to desecrate Shabbat, or a raped priest’s wife who was compelled along with her husband to separate; these sparked a stormy debate and harsh criticism of halakha and its adherents.

The underlying assumption of these critiques was that such directives reflect indifference on the part of halakhists to moral values. As we saw above, this is a logical error. The religious arsenal includes religious values in addition to moral ones, and sometimes when a conflict arises between them we act in a non-moral manner. That does not mean we are indifferent to morality; it means that sometimes it is overridden by a religious value. A secular person has only moral values and no religious ones, so he does not understand that the religious person faces a conflict and interprets it as indifference to morality. But that is a mistake, since he judges the religious person by his own values (=the secular critic’s; see Column 372 on criticizing a person according to his own premises). One must understand that if the critic were attacking my commitment to religious values, that would be a legitimate debate like any other. But there the sense was that the secular critique did not attack my commitment to religious values but rather my lack of commitment to moral values. That is, there was a sense that the religious are immoral even by their own lights. This is, as noted, a logical error.

Let me now return to the halakhic categories and move to the first.

The Meaning of the First Category

The interesting question that remains is: what is the meaning of the first category (the moral halakhot)? From the existence of such a category one might conclude that halakha includes both morality and religious values. That is, apparently we arrive at the second approach, according to which halakha includes morality and therefore contains both moral and religious values. But I wish to argue something more radical: halakha and morality are two independent categories. There is no inherent link between them, and therefore morality is not included in halakha but is external to it. This, of course, leads us to the question of the meaning of the moral halakhot.

I already noted that even in halakhot belonging to this category there are differences between them and morality. As I understand it, this means that even these halakhot do not strive to realize moral values but religious ones. When the Torah forbids murder it does not intend to inform us that murder is morally reprehensible, but that it is halakhically prohibited. It was morally reprehensible even before the command (as I noted regarding Cain), and the Torah wished to say that one who murders transgresses also a religious prohibition and not only a moral one. Therefore there are differences between the moral judgment of one who murders and the halakhic judgment of him. If he killed by indirect causation (grama), he is morally a scoundrel no less than any ordinary murderer. But there is no religious transgression in such a case (at least not a full transgression of “You shall not murder”). There is some practical overlap between these two categories (both forbid the same acts, with certain differences), but there is no reason to assume that the overlap will be complete or that it indicates categorical identity. If halakha does not strive for moral values, there is no reason to think the halakhic parameters of the prohibition of murder must coincide with the parameters of the moral prohibition.

Thus, the differences in the parameters of the first-category prohibitions between halakha and morality prove that halakha is indeed indifferent to morality. That does not mean that the Torah or God is indifferent to morality. In Column 456 I showed that the authority of morality is based on divine legislation, and without it morality has no force. I noted here that the Torah itself writes “Do what is right and good,” meaning that one must act morally. But that verse is not counted among the commandments according to any of the enumerators I know. The meaning is that morality is indeed God’s will and the Torah’s will, but it is not part of halakha. The conclusion is that God’s will is divided into two distinct, independent categories: religious values (that is halakha) and moral values. This is very close to approach 2 above, except that here morality is external to halakha. It is an additional category, beyond halakha, within the divine will or the Torah’s will.

This returns us to an earlier remark. By definition, morality is universal. There is no Jewish morality and another morality. There is morality, and it obligates all people according to the same criteria and values. What is distinctive about Judaism is halakha—only halakha. The moral component in the Torah’s value-arsenal is universal, and only the halakhic component (the religious values) is particularistic. I will return to this in the appendix.

We can now answer a question many have asked: Why did the Torah need to command prohibitions such as murder, theft, and other moral prohibitions (the so-called “rational commandments”)? Seemingly, all these were known and binding even before the command; what does the command add? Recall that Cain was reproached for murder even before there was a command. To my mind, none of the proposed answers is convincing. In the picture I describe, however, the answer is very simple and natural: the command is needed to say that there is also a religious prohibition here and not only a moral one (and consequently a halakhic punishment). Without the command there would have been only a moral prohibition. In this picture the question does not arise at all. “Rational commandments” do not mean the command is superfluous; rather, that we would have performed the act even absent its definition as a command—but then it would not be a commandment, only a good deed (like the commandments the Patriarchs kept before the Torah was given).

The conclusion is that the motivation to perform these acts also changes: after the command, when I refrain from murder or help another, I am to do so also out of commitment to the halakhic command, not only from moral motive. Commandments require intention (kavanah), even the moral commandments. These too are commandments, not (only) moral values. Of course I do them also because of the moral imperative (which is also God’s will), and therefore I should have a double motivation. This does not necessarily address what should be in my consciousness at the moment of performance, but rather the principled motivation. There is nothing problematic in the claim that a person acts or refrains from acting on both motives together. The upshot is this: even if I were not committed to morality, I would do this; and in such a case, even if my conscious motive is moral, I am considered to have fulfilled a commandment. Conversely, if I would do it even if there were no halakhic command, then I can be seen as a moral person.

Yefat To’ar (The Captive Woman)

In Column 15 I dealt with the permission to rape a gentile captive woman in war (the law of “eshet yefat to’ar”). There I argued that the fact that there is no halakhic prohibition does not mean the Torah is indifferent to it on the moral plane. My claim was that this permission only means there is no halakhic prohibition, but morally the Torah’s attitude to such an act can be entirely negative. Hence a halakhic decisor asked about it should answer: indeed there is no halakhic prohibition here, but morally it is absolutely forbidden.

It would seem that the Sages already allude to this when they say the Torah spoke here “against the evil inclination”—that is, this is a reprehensible act permitted only because war must focus on the enemy and not on the soldier’s urges. The assumption is that prohibiting it would harm the soldiers’ ability to fight, and therefore the Torah permitted it. The natural conclusion for a situation in which we can demand restraint from soldiers, as is accepted today, is that there is certainly no place for such a halakhic permission. But that still does not say what I am saying here, because that argument addresses only the halakhic plane and does not address the moral question. On the contrary, one might infer that halakha does care about morality, and only here it permits this moral issue because of considerations of morale and warfare.

But that is a mistake. As I noted there, the Sages and the commentators in this passage are not addressing the rape of the captive. The problem of rape hardly troubles any of them. The problem they address is the halakhic prohibition of intercourse with a gentile woman. That is the problem the commentators see in this permission, and only of that do they speak when they say the permission was given post factum, “against the evil inclination.” The moral prohibition of rape does not arise in the passage there and does not trouble the Sages, commentators, or decisors. One could claim this shows indifference to morality (or prattle about a lofty “Jewish morality” no one understands), but to my mind it is more reasonable that this silence indicates an understanding that halakha deals only with the religious aspects and not with the moral ones. In the religious aspect (intercourse with a gentile), there is a permission against the evil inclination, but the moral aspect (rape) is left to our understanding and decision, and halakha does not address it. Not because it is unimportant, but because it is a different, extra-halakhic category.

Two Sources

This thesis seems to me simple as an egg—and in fact quite necessary. The alternatives do not sit well with the facts (halakhic) and with logic. For some reason, however, many people recoil from the conception I presented here, and so I will bring two sources that support it (see also here): the Ran in his Derashot, Derush 11, and the Maharal in Be’er HaGolah, whose main points I cited above with omissions I will now complete.

The Ran writes there, among other things, as follows:

But in my eyes the plain meaning of the verse is as follows. It is known that humankind needs a judge to judge among its members, for otherwise each person would swallow his fellow alive and the world would be ruined. Every nation needs a civil order for this, to the point that a sage said that even a band of robbers agreed among themselves to practice righteousness. Israel needs this no less than other nations. In addition, they also need it for another reason: to uphold the laws of the Torah, and to punish those liable for lashes and those liable for capital punishment who transgress the laws of the Torah, even though the particular transgression entails no loss to civil order at all. And there is no doubt that in each of these two aspects circumstances will arise—one requiring the punishment of a certain person according to true justice, and another where it would not be fitting to punish him according to true just judgment, but it would be necessary to punish him for the sake of maintaining civil order and according to the needs of the time. The Blessed One designated each of these aspects for a distinct office and commanded that judges be appointed to judge true just judgment, as it says, “They shall judge the people with righteous judgment,” meaning: the judges are appointed for this—what is the scope of their authority? Their whole purpose is to judge the people with true just judgment in itself, and their authority does not extend beyond that. And because civil order is not perfected by this alone, God completed its correction with the commandment of the king.

And we will further clarify this by positing one side of the matter: We learned (Sanhedrin 40b): “Do you recognize him? … Did you warn him? … Did he accept the warning? … Did he kill within k’dei dibbur?” There is no doubt that all this is appropriate from the perspective of just judgment: why should a person be executed if he did not know that he entered into an act carrying capital liability, transgressed it, and accepted upon himself the warning? Hence the requirement of accepting the warning and all the other matters taught in that baraita; this is true just judgment in itself, entrusted to the judges. But if transgressors would be punished only in this way, the civil order would be ruined entirely—murderers would multiply and not fear punishment. Therefore the Blessed One commanded, for the sake of the world’s maintenance, to appoint a king, as it is written (Deut. 17:14–15), “When you come to the land… you shall surely set a king over you,” which is a command that we appoint a king over ourselves, as received from our Sages (Sanhedrin 20b). And the king may judge without warning, according to what he deems necessary for the civil polity.

Thus, the appointment of the king is the same in Israel as in other nations who need civil order, while the appointment of judges is special and more needed in Israel—as it says, “They shall judge the people with righteous judgment,” meaning that the appointment of judges and their authority is to judge the people with judgments truly just in themselves.

And I further explain: just as our Torah is set apart from the codes of the nations by commandments and statutes that are not concerned with civil order at all, but whose outcome is the resting of divine influx upon our nation and its cleaving to us—whether this is visible to our eyes, as in matters of sacrifices and everything done in the Temple, or whether it is not visible, as with other statutes whose reasons have not been revealed—nonetheless there is no doubt that the divine influx adhered to us and rested upon those actions, even though they are far from rational grasp. Nor is this surprising, for just as we are ignorant of many natural causes, and yet their existence is certain, how much more should we accept that we do not grasp the causes of the resting of the divine influx and its cleaving to us. And this is what distinguishes our holy Torah from the codes of the nations, which have no business in this at all, but only in correcting their civil polity.

Therefore I hold—and it should be believed—that just as the statutes have no role in correcting civil order and are an essential proximate cause of the resting of the divine influx, so too the judgments of the Torah have a great role, as if they are shared between causing the resting of the divine influx upon our nation and the correction of our civil polity. And it is possible that they inclined more toward that which is loftier in value than toward the correction of our polity, for that correction the king whom we appoint over us will complete, whereas the judges and the Sanhedrin had as their goal to judge the people with truly just judgment in itself, from which the divine matter would cleave to us—even if our mass polity would be thereby completed or not completed. Consequently, it is possible that in some of the judgments and laws of those nations there is something closer to correcting civil order than is found in some of the judgments of the Torah. We lose nothing by this, for whatever is lacking in that correction the king will complete. But we have a great advantage over them, for since they are just in themselves—that is, the laws of the Torah, as Scripture says, “They shall judge the people with righteous judgment”—the divine influx will cleave to us.

The Ran explains that ordinary legal systems aim to achieve justice and morality and to create a proper society, whereas halakha also seeks the “resting of the divine influx,” i.e., the Shekhinah dwelling in Israel. In my terminology, that is what I called “religious values.” From this he infers that foreign legal systems can be more complete in the moral dimension than the halakhic system, since the latter operates under additional constraints (religious values). A system that strives to achieve more values will realize each of them less well than a system that strives for only some of them—as in “All my days I was defeated only by a specialist.” Likewise, a non-kosher restaurant need not be worse than its kosher counterpart: if the kosher dish is tastier, the non-kosher restaurant will serve it; but if the kosher dish is less tasty, the kosher restaurant cannot serve the tastier non-kosher dish. One who seeks both taste and kashrut will attain each less fully (given a fixed budget). So, religious values restrict the possibility of fully realizing moral values; hence in the case of a raped priest’s wife the halakhic outcome does not accord with morality, and similarly regarding saving the life of a gentile on Shabbat or the killing of Amalekite infants. All these are limitations that religious values impose on our moral conduct and do not allow us to implement it fully. But this does not indicate moral inferiority compared to other systems or to secular people or gentiles; rather, it reflects our commitment to a broader array of values. Our commitment to morality is complete—only that we are also committed to religious values.

A similar picture appears in the words of the Maharal cited above. We saw that he notes that in the laws of returning lost property—which belong to the first (moral) category—there are differences, sometimes leniencies and sometimes stringencies, vis-à-vis the moral norm of returning a loss. I will now complete the omissions (the underlined lines complete the gaps in the quotation above), and you will see that the explanation is precisely the picture I described here and that also emerged in the Ran’s derashot:

In Bava Metzia ch. 2 (21b) they said there that one is not required to return a lost item after the owner’s despair. This seems far-fetched to people: that a person takes what is not his, for which he did not toil or trouble himself, and covets another’s property. This is not in accordance with the “religion of civility,” for that code obligates returning the lost item even after the owner has despaired of it.

And the reason is that the “religion of civility” obligates what ought to be done for the sake of the world’s order, even if reason does not require that act—only that such is the world’s order. Therefore that code sometimes has stringency in a matter, even if according to reason and straight judgment it need not be done. And sometimes the “religion of civility” is very lenient when the matter need not be done for the world’s order, even if it is not fitting according to reason—but only according to that code.

Therefore according to the “religion of civility” one must return a lost item after the owner’s despair—and that is a stringency. Conversely, if one found silver or gold vessels and announced them once or twice and no one claimed the loss for a year or two, he keeps them and uses them, for there is no “repair of the world” after he has announced them several times and waited a year or two or more; no one will come.

But this is not in accordance with the Torah, for if one found silver or gold vessels and announced them many times, they are forbidden to him forever; they must remain deposited until Elijah comes; he must never touch them. See how very strict they were.

All this is because the words of the Sages are in accordance with the Torah. For all the words of the Torah are measured by reason, and what reason requires is what must be done. As the Torah said (Deut. 4): “You shall keep and do [them], for it is your wisdom….” It is not a “religion of civility” that leaves things to conventional opinion and thought; the Torah is entirely rational and does not turn to mere conventional reasoning.

In his confusing terminology, “reason” is Torah and “civility” is morality. The Torah turns to truth, even if it does not align with moral conventions. The truth he speaks of is what I called “religious values.” He claims, just like the Ran, that sometimes halakha is stricter than morality and sometimes more lenient. In any case, it is distinct and does not coincide with it.

His terminology is very confusing because he detaches morality from reason. Seemingly, his words imply that the Torah is reason and morality is emotion or convention (the “notorious,” not the “intelligible”—see Column 177 and the comments that follow). That is, of course, not correct, since morality’s source is in reason and not in emotion (one who thinks it stems from emotion is not speaking of morality but of various conditionings imprinted in us). This terminology likely rests on the fact that although morality’s authority does not derive from emotion, it indeed resides in our natural sentiments (including emotions), whereas halakha is an intellectual matter, cold and seemingly alien to natural feeling, and therefore sometimes requires overcoming our moral feelings. But in my understanding this is only terminology, not essence. In any case, note that these statements are made with respect to moral halakhot (returning lost property), where even there a dimension exists of the resting of divine influx beyond morality and social repair. The conclusions regarding halakha as a whole (the other two categories) seem self-evident.

Some Caveats to the Halakha–Morality Dichotomy

The absolute separation I drew between halakha and morality is correct on the theoretical, categorical plane. But moral considerations can touch halakha as well, and I think when we find statements by decisors that take moral considerations into account, they belong to one of the exceptions below. I must preface that I am not claiming all decisors agree with the picture I described here—certainly not consciously (in my view, subconsciously most of them agree, at least when speaking offhand). I claim that those who disagree are mistaken; but my concern here is to argue that even in my picture there is room for moral statements by decisors, at least in the situations I will describe. Of course, not every actual statement by a decisor will fit this, since there are decisors who hold a different stance regarding halakha and morality (and who, in my view, are wrong). I will try to outline these exceptions briefly:

As a rule, because of the disconnect between the halakhic and moral categories, I think that in principle we are dealing with moral statements rather than pure halakhic determinations. My claim is that when a decisor makes a moral statement, he does not mean that this is the halakha, but that this is how one ought to act because of the moral consideration despite the halakhic conclusion—though this can also enter the halakhic plane. This can happen in several situations:

1. When halakha is lenient and morality is stringent, as in returning a lost item after the owner’s despair. There is no prohibition to take the item after despair—only permission for the finder to take it. Morality can prevail and dictate that we not take it. In such a case it is important to understand that this is not a halakhic directive but a moral one, and still it is obligatory for anyone loyal to the Torah.
2. Even when halakha is stricter than morality, there can be cases where halakha allows several options and, absent the moral consideration, we would rule stringently (e.g., due to rules of doubt), but the moral consideration can tip the scales to act otherwise. This can be understood in several ways. For example: indeed the halakhic determination is stringency due to doubt, but in such cases morality overrides halakha. Alternatively, one can say that a determination “from doubt to stringency” is an instruction given in the absence of another deciding consideration; but if we have a deciding consideration by virtue of which we can choose one of the paths, the laws of doubt do not apply, and then halakha itself recognizes the path chosen for moral reasons. Something like this can explain leniency in times of great need (sha’at ha-dehak), even though, ostensibly, in a doubt involving a Torah law we should be stringent (I described this mechanism in detail in my article “On Leniency and Stringency”).
3. At times such a statement can appear in “a transgression for its own sake” (aveirah lishmah; see Nazir 23b; Horayot 10b)—that is, in cases where the moral wrong is enormous compared to the halakhic transgression, and then halakha is set aside. This, too, is not a halakhic instruction but a case where moral values override halakha (see my article here).

It is reported in the name of the Chazon Ish that every decisor should be aware that there is a “fifth part” to the Shulchan Aruch. It is not entirely clear to me what he means. It is fairly clear he is speaking of extra-halakhic considerations that should influence the halakhic decision, but these can play out in several ways, as noted above. Usually the decision in such cases is not halakhic but moral (except for the second situation I described).

In addition to the above, there are situations where the Sages enact or decree rabbinic laws for moral considerations. In such a case they insert the moral principle into halakha—but only as a rabbinic law. These are cases like “coercing against the trait of Sodom” (Bava Batra 12a), or the ordinance for penitents and various other enactments. In such cases, an enactment by a competent body—that is, the Sanhedrin (but not a decisor)—can transform a moral principle into halakha. Note that the very need for an enactment proves the disconnect between the two categories and their dichotomy. In cases where there was no enactment by a competent body, the Sages can still recommend and even coerce, but that will not turn the norm into halakha. Thus, for example, regarding returning a lost item after despair, the Shulchan Aruch records an obligation to return and even coercion, yet it remains a standard “beyond the letter of the law,” not a law proper. The source is Bava Metzia 30b, and it is cited in the Shulchan Aruch and decisors as a duty beyond the letter of the law. For additional cases, see a review here.

So much for the picture regarding the relationship between halakha and morality. Along the way I repeatedly relied on the claim that there is no “Jewish morality,” and in the appendix I will elaborate a bit on that.

Appendix: Is There “Jewish Morality”?

I mentioned above the popular thesis of “Jewish morality.” Many use it to explain halakhot that seem contrary to morality and perhaps also the a-moral laws. Their claim is that underlying these laws stand moral principles that do not accord with accepted morality. This is a lofty, exalted “Jewish morality” not understood by us—only by the Master of the Universe. To my mind, this thesis is not only incorrect; it reflects conceptual confusion.

The intent is to a different morality that emerges from the Torah, as opposed to the morality accepted by “the wicked gentiles.” But this raises the question whether the gentiles themselves are also supposed to conduct themselves according to “Jewish morality,” or whether there are different moral directives for Jews and for gentiles. In other words: is this a Jewish moral theory that obligates every human being who is bound by morality, or is it a moral theory for Jews? Does the adjective “Jewish” refer to the morality’s source or to its addressees?

If gentiles are also supposed to act this way, then there is no “Jewish morality”; there is simply correct morality, and the claim is that the correct morality is that which emerges from the Torah (on the questionable assumption that anything of the sort truly emerges). That is no different from any moral dispute between people or groups. It is therefore hard to call such a thesis “Jewish morality.” But if the meaning is that truly there are different moral rules for Jews and gentiles, then we are speaking of a “Jewish morality” that stands opposed to the human conscience, for the conscience of Jews and gentiles is quite similar (with differences no greater than those among Jews themselves or among gentiles themselves). But if so, why call this “morality” rather than simply “halakha”? It is mere wordplay. In effect they are telling us that the Torah indeed runs counter to our moral conscience and its rules do not fit it, but still, as Jews, we must follow it. That is precisely what I described here—except that in my terminology this is halakha, whereas they call it “Jewish morality.” It is just semantics, for both they and I agree there is a contradiction between halakha and morality (i.e., what arises from our natural conscience).

Take, for example, one of the anti-moral halakhot mentioned above: the obligation that a raped priest’s wife separate from her husband. Does anyone seriously claim that “Jewish morality” obligates such a separation? Is anyone prepared to accept the claim that there is no moral problem with such an obligation? Any rational person agrees there is a problem here: a woman who suffered a horrific trauma through no fault of her own is now put, along with her family, through another trauma—perhaps worse. In my view, the religious value overrides the moral wrong; but what do the proponents of “Jewish morality” say here—that true morality dictates they separate? What does that have to do with “morality”? This approach simply labels religious principles as “morality,” without changing anything about their alienation from what is ordinarily called morality. The key question, beyond semantics, is whether we have here “override” (dechuya) or “permission” (hutrah): is the obligation of the priest’s wife to separate accompanied by a moral cost or not? To my mind, decidedly yes; I cannot understand a view that denies this.

Another example is the return of lost property discussed by the Maharal. The proponents of “Jewish morality” would say that lofty, hidden “Jewish morality” dictates that once the owner has despaired there is no moral value in returning his lost item—contrary to the moral imperative arising from our shared conscience that if something is his, it is right to return it. If so, this is simply an error of our conscience (and of the wicked gentiles), and how good that halakha corrects it. But how will they square this with the fact that the Sages and all the decisors agree that morality requires returning the item even after despair? The Talmud itself and all the decisors after it establish that there is a moral obligation to return a lost item after despair, and according to some even coercion—yet in the laws of returning lost property there is no such obligation. This obligation is defined as “beyond the letter of the law.” Why? If the law expresses “Jewish morality,” and if “Jewish morality” (assuming the Sages reflect it) tells us to return a lost item even after despair, I would expect that the laws of lost property would not address the owner’s despair at all. Why does halakha establish that there is no halakhic obligation to return a lost item after despair, while morally there is such an obligation? This is an excellent illustration that “Jewish morality” is not different from universal morality and does not coincide with halakha. The meaning is that Judaism is committed to universal human morality, and what is distinctive in Judaism is only halakha.

Note that the Torah tells us “Do what is right and good,” without specifying what that means. Is its intent merely to command us again to keep halakha? That sounds very strange. Not for nothing do the Ramban there and the Magid Mishneh at the end of Hilkhot Shekhenim explain that this is an obligation to act beyond the letter of the law—that is, according to morality beyond halakha.[4] Note two points regarding this command: (1) This obligation is not counted among the 613 commandments and therefore not part of halakha. (2) Nowhere is it detailed what “right and good” is. The assumption is that we all understand it, apparently by our conscience (cf. the Sages’ statement that had the Torah not been given we would have learned modesty from the cat, etc.—Eruvin 100b). And the obligation to the conscience—that is, morality—does not belong to halakha. It is an extra-halakhic obligation. The conclusion is that “Jewish morality” is nothing other than a commitment to universal human conscience, as R. Kook wrote in several places (prominently in his siddur Olat Re’iyah on the Akedah passage; see Columns 140 and 333, and also in our book Yishlach Shoreshav, in the article on the Fourth Root), though the point is self-evident without him as well.

Moreover, the very tension between halakha or Torah and morality indicates there is no “Jewish morality.” The “Jewish morality” thesis assumes there is a Jewish morality whose source is the Torah rather than our conscience, and it assumes that if it contradicts conscience we must adopt it as our moral principle (for it is the correct morality, at least for us). If so, however, dilemmas and tensions between Torah and morality should not arise. When we would encounter a Torah principle that contradicts morality, there would be no need to reconcile them: we would simply conclude we have uncovered another error in our morality (conscience’s delusions) and discovered another facet of the exalted “Jewish morality.” The very need to reconcile such difficulties tells us that universal morality (the voice of conscience) has independent authority and is not learned from the Torah.[5] It is no wonder that it is clear to all of us that when we see something in the Torah that contradicts our conscience, it requires resolution.

To speak of “Jewish morality” is roughly like speaking of Jewish physics, Jewish physiology, or Jewish logic (and no—the “auditory reason” of R. Ha-Nazir has universal authority and is “Jewish” only in its source). In Column 457 I argued that moral laws are on a footing similar to the laws of logic (as opposed to the laws of nature), and therefore even God is bound by them. If so, it is obvious there is no place for multiple moral theories—Jewish and other.

[1] Whenever I needed a more detailed link I referred to Column 15, so you can search the site for “Column 15” and find the places where I addressed the relationship between halakha and morality.

[2] I am not certain this truly constitutes idolatry, but neither am I certain it does not. The idol one worships can also be wood and stone—so why should one not be liable for serving an abstract idol? In Column 456 I explained that moral obligation cannot exist without a source of authority that grants it force; if that source is not God, then there is a second, parallel authority. Still, a person can err and be committed to moral rules without thinking there is an entity that gives them authority. That is indeed an error, but there is still room to argue that such a person is not engaged in idolatrous “partnership.”

[3] That is the view of most decisors. I disagree; in my view, today there is permission—and even an obligation—to save the life of a gentile on Shabbat. But here I am merely illustrating the logic.

[4] In this context, it is interesting to see the dispute between the Rambam in his Fourth Root and the Ramban in his glosses there regarding the command “You shall be holy.” The Rambam interprets it as a general command covering all the commandments, and what is not counted is due to redundancy; the Ramban counters that such redundancy is impossible, but he does not repeat his claim at the beginning of Parashat Kedoshim that it forbids being a “scoundrel with the Torah’s permission.” See on the “scoundrel paradox” in Column 528 and elsewhere, and in our book Yishlach Shoreshav, in the article on the Fourth Root.

[5] Yet God is needed to grant it authority. See Columns 456–457.