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On the rigors of Halacha and obedience to the law

שו”תCategory: generalOn the rigors of Halacha and obedience to the law
asked 9 years ago

Rabbi Michael Avraham,
Hello!

My name is A., a law student.
I received a recommendation to contact you in connection with a seminar paper I am writing.

In short – the phenomenon of aggravation reflects a high level of religiousness in that the individual is willing to take on the difficulty, even though he is not obligated to it (whether by law itself or beyond the law), in order to get closer to his Creator.

From this it is understandable why the phenomenon of aggravation is very common and prevalent in religious cultures.
I would like to add a reference to such a phenomenon in secular state law. The stricter one can be the legislator, who, understanding two legislative options, chooses the stricter legislation.
Or the law-abiding citizen who chooses to uphold the law in a more strict sense.
Are there any references to this in the philosophy of law?
My line of thought began with the rationales for obeying the law (consent theory, social contract, etc.). My thought as to why there would not be a tendency to aggravation, at least on the part of the individual who abides, is this – since we are dealing with a relationship between equal members of the state (the principle of the rule of law) and not between a person and a higher entity, as in a religious system of laws, then the relationship does not stem from a motivation to make a transition, but rather to uphold the agreement. On the second level, there is no motivation to approach the legislator, a higher entity that imposed the laws, since the authority to the legislator was given by the people, and in fact the people are the sovereign. (Of course, the issue of radicalization due to mental disorders, etc. does not enter the scope of the discussion at all).
Regarding the tightening of the legislature’s representation? I assume that there are practical, purposeful considerations, but again, the people will stand above the state legislature. Will they try to shape norms in a more stringent way that will come closer to the will of their constituents?…
These are all my explanations, I’m trying to find a clue in the scriptures. Also, I’d love to hear your opinion on the matter!

Thanks in advance,


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מיכי Staff answered 9 years ago
The topic requires thought, and I will write down some thoughts that came to my mind. At first glance, it seems to me that the law is perceived as a mandatory minimum standard (which is justified in imposing a sanction on those who violate it). Therefore, moral norms that do not justify a sanction are not included in it (this was the debate surrounding the law “You shall not stand for the blood of your neighbor”). Hence, there is no reason in the world to be stricter in the context of the law, unlike in halakha. Beyond that, the law is based on a covenant between citizens, and if someone becomes stricter beyond the mandatory minimum (for example, pays more taxes), he is a sucker, because other citizens will not do so. In contrast, in halacha, the strictness is towards God, the Almighty, and is not conditional on the others also becoming stricter. Beyond that, aggravation in the legal sphere has no significant consequences (even if you pay a little more in taxes, it is negligible in the state treasury). But in the spiritual-halakhic sphere, any aggravation has significance for you. The aggravation of halakhic doubt is based on the fear that you are violating a prohibition (for example, if you have a piece of meat in front of you that is doubtful whether it is pork or cow. After all, there is always the fear that you ate pork, and therefore it makes sense to be strict). But in law, what is required is the interpretive minimum, and there is no fear that you are violating a prohibition. Furthermore, the obligation to be strict in doubt (daoriyta) is itself a halakhic obligation and is not made voluntary. There is no such obligation in the law. On the contrary, the one who is strict in halakhic terms where there is no obligation to be strict is seen as a layman who does unnecessary things. The distinction between foolish strictness and valuable strictness is a complex issue.

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