The 'Categorical Imperative' in Jewish Law
Tzohar – 5768
Rabbi Michael Abraham
(Following the articles by Rabbi Yoel Friedman and Rabbi Meir Nehorai)
The aspect presented in this article has troubled me for some time, but it seems that the debate that began in issue 29 of 'Tzohar' and continued in issue 30 between Rabbis Nehorai and Friedman regarding the proper approach to consumption during the Sabbatical year reflects it with particular clarity. I therefore thought that this is the time and place to define it, so that it may be discussed directly. I should note that what follows is not written as a response to what was said in the previous issue, although I think it will clarify the fundamental point of dispute, and also express a position on the matter under debate. The purpose of this article is not to clarify that point of dispute, but to use that dispute in order to elucidate a more general meta-halakhic principle.
First, we must preface matters with a brief philosophical introduction, which will be necessary for what follows. We will present Kant's 'categorical imperative' in brief, and touch shortly on those aspects of it that bear on the discussion below.
A. Kant's 'Categorical Imperative'
One of the subjects that occupied the eighteenth-century German philosopher Immanuel Kant was the logical foundation of ethics[1]. Kant rejected grounding ethics in empirical elements. Ethics is supposed to guide the human being with respect to the question of what is good and proper, not learn this from his actual behavior (= practical anthropology). Therefore it cannot be derived from any facts whatsoever (such as our innate aspiration for happiness, the moral feeling, or the fear of God implanted within us, and the like). Incidentally, I would note that at the end of the discussion Kant also saw ethics as a kind of proof for the existence of God, after rejecting all the other possibilities (three in number, according to his classification) for proving His existence[2]. What reason did not permit, he reestablished in his moral theory.
The way Kant tended to justify claims in general, and ethics in particular, was by recourse to a priori reason (= prior to experience, and not dependent on facts), or in his language: 'transcendental' reasoning. Accordingly, in our context as well he sought an a priori mechanism that could ground our obligation to morality, and define the content of the supreme moral command, in such a way that all specific moral obligations could be derived from it.
In a rather circuitous argument, which purports to be deductive (= logically necessary), but which in my view is not fully valid logically[3], Kant argues that the supreme moral principle is the 'categorical imperative,' and he even proposes a possible a priori grounding for it.
He begins from the fact that the human being is a rational being, and nothing more. Without recourse to experience, the only basis that can support ethics is reason. If so, the idea of the good and reason are the only basis from which concrete directives can be derived. We must therefore define the concept of 'the good' in itself, and from within it seek a basis for our obligation toward it.
Kant opens the Groundwork of the Metaphysics of Morals (this is the book that presents the argument in the clearest and sharpest way) with the claim that there is nothing in the world that is always good without qualification except the good will itself[4]. Any positive trait, or good behavior, may at times be improper, or at least neutral, especially when it stems from the wrong motive (that is, not simply from the desire to do good as such).
He also sharply distinguishes between the good will and the inclination toward the good and its consequences. The good will is not good because of its results and purposes, but by virtue of the willing alone. Its usefulness and fruitfulness are irrelevant in this regard. Both the inclination and the results are facts, and as such they do not pertain to the definition of the good and to moral judgment, which are supposed to be a priori (= prior to experience, and therefore also unrelated to facts).
The central concept in Kant's moral doctrine is moral duty. This is the motivation that the moral will seeks to fulfill. Because the human being is affected by passions and inclinations, the moral law appears to him in the form of a command, as though it were imposed upon him[5]. Such a command may be hypothetical (= conditional), or categorical. A hypothetical imperative commands some act in order to achieve an end, and therefore it is clear that the moral imperative cannot be of that kind. The categorical imperative is absolute, without dependence on any ends or facts. Therefore such an imperative must be universal and uniform, independent of the person to whom it is addressed, and also not dependent on the object of the action.
Kant's conclusion is that the formula of the categorical imperative of morality must be as follows:
Act only according to that practical maxim which, when you adopt it, you can also will to become a universal law.
The particular practical maxim that appears in this formula is a specific directive for conduct. Of course, this specific application of the categorical imperative may depend on facts, and also on people and their natures. For example, from the categorical imperative follows the directive not to cause suffering to a person, since I would not want there to be a universal law allowing one to cause suffering to human beings. Yet as a matter of fact there are people for whom action A causes suffering, while for others action A specifically benefits them, whereas action B causes them suffering. In this sense, the application of the categorical imperative does depend on certain circumstances and facts. The imperative itself is detached from the factual plane, but its applications certainly are not[6]. Here we already enter the question of the application of the categorical imperative, which is exceedingly complex, and this is not the place to elaborate[7].
So much for a brief introduction to Kant's categorical imperative.
B. "What is hateful to you, do not do to your fellow" (What is hateful to you, do not do to your fellow)
At first glance we appear to find a saying very similar to Kant's among the Sages as well. In the Talmudic passage Shabbat 31a it is stated:
Again, there was an incident involving a certain non-Jew who came before Shammai. He said to him: Convert me on condition that you teach me the entire Torah while I stand on one foot. He pushed him away with the builder’s cubit that was in his hand. He came before Hillel, who converted him. He said to him: What is hateful to you, do not do to your fellow — that is the entire Torah, and the rest is its explanation; go and learn. — Again there was an incident involving a certain gentile who came before Shammai and said to him: Convert me on condition that you teach me the entire Torah while I stand on one foot. He pushed him away with the builder's cubit in his hand. He came before Hillel, who converted him. He said to him: What is hateful to you, do not do to your fellow — that is the entire Torah, and the rest is its explanation; go and learn.
Hillel the Elder grounds the entire Torah on the principle that we must not do to another what we would not want done to us. Hillel does not mention the verse And you shall love your fellow as yourself (Leviticus 19:18; love your fellow as yourself), but several commentators have already noted that this is its source[8].
Maimonides, too, defines it this way in the Laws of Mourning (at the beginning of chapter 14):
Everything that you want others to do for you, you should do for your brothers. — Everything that you want others to do to you, you should do for your brother.
That is, he defines the obligation to do for another what I would want done for me. So too in Sefer HaMitzvot, commandment 206:
The 206th commandment is that He commanded us to love one another as we love ourselves, and that my compassion and love for my brother should be like my compassion and love for myself, with regard to his property and his person, and everything that is in his possession or that he desires. And everything that I desire for myself, I should desire for him likewise; and everything that I hate for myself or for one who is close to me, I should hate for him likewise. This is His statement, exalted be He: “And you shall love your fellow as yourself.” — The 206th commandment is that He commanded us to love one another as we love ourselves, so that my compassion and love for my brother should be like my compassion and love for myself with regard to his property, his person, and everything that is under his control or that he desires. Everything I desire for myself, I should desire for him likewise; and everything I hate for myself or for one attached to me, I should hate for him likewise. This is His saying, exalted be He: love your fellow as yourself.
Some have already noted the relation between these formulations and Kant's categorical imperative. At first glance, the principle stated here is the same principle that we found in Kant, in either a positive or a negative formulation: not to do something that we would not want to become a universal law (or that we would not want not to be done to ourselves).
This resemblance may be seen in another rabbinic source as well, namely the well-known dispute between Ben Azzai and Rabbi Akiva, brought in the Jerusalem Talmud (Nedarim 9:4) and parallel sources. In Genesis Rabbah, section 24, it appears as follows:
Ben Azzai says: “This is the book of the generations of man” — this is a great principle in the Torah. Rabbi Akiva says: “And you shall love your fellow as yourself” — this is a great principle in the Torah. For one should not say: Since I was humiliated, let my fellow be humiliated with me; since I was cursed, let my fellow be cursed with me. Rabbi Tanhuma said: If you do so, know whom you are humiliating — He made him in the image of God. — Ben Azzai says: This is the book of the generations of Adam — this is a great principle in the Torah. Rabbi Akiva says: Love your fellow as yourself — this is a great principle in the Torah[9]. Lest you say: Since I was humiliated, let my fellow be humiliated with me; since I was cursed, let my fellow be cursed with me. Rabbi Tanhuma said: If you do so, know whom you are humiliating, for He made him in the image of God.
Various explanations have been offered of this dispute; but we have found an interesting explanation in Rabad's commentary to the Sifra on the portion Kedoshim (and likewise in Matnot Kehunah on Genesis Rabbah), where he argues that the words 'Lest you say' were said by Ben Azzai. He argues against Rabbi Akiva that if we compare a person to his fellow, we may reach the conclusion that if things are bad for me, then I have no obligation to ensure that they will not be bad for my fellow. Ben Azzai answers this with his own rule, which instructs us that even if things are bad for me, I am nevertheless commanded to ensure that they will be good for my fellow and not bad, ostensibly even more than for myself[10].
The Jewish neo-Kantian philosopher Hermann Cohen, in his book Religion of Reason out of the Sources of Judaism[11], grounds the reason for this in the continuation of the verse cited by Ben Azzai: He made him in the image of God (He made him in the image of God). In other words, universality is the basis of Ben Azzai's position[12]. If Rabbi Akiva sees the moral command as the result of an obligation toward the other, then Ben Azzai sees it as the result of the duty to imitate the Holy One, blessed be He (or perhaps of the fact that every human being was created in the image of God)[13]. Why is universality an argument against the failure that arises from Rabbi Akiva's view? Does universality dictate that even if things are bad for me, I must still care for my fellow? How is this connected to universality? On the contrary, at first glance precisely the comparison made by Rabbi Akiva points more in the direction of equality among all human beings.
It seems that this can be explained by means of Kant's categorical imperative. Universality means that you should not do to your fellow what you would not want done to you. That is, your obligation toward the other does not depend on your actual condition, but on what you would want your situation to be. What seems good in your eyes, even if it is not your own actual condition, you must see to it that your fellow has. In other words: do not do to your fellow what you would not want to have happen to you (even if in fact such a thing did happen to you).
We can now understand the dispute between Rabbi Akiva and Ben Azzai. Rabbi Akiva, too, accepts the Kantian principle[14], except that in his view the obligation to care for one's fellow depends on my actual condition. I am not obligated to ensure that my fellow be better off than I am, only as I am. Ben Azzai argues against him that the commandment is to do for one's fellow what I think would be good for him (or would have been good for me), not what I in fact have. If so, there is apparently great similarity between Kant's approach and that of the Sages.
And yet, there are thinkers who have nevertheless distinguished between these theories in terms of their sources (Hillel, Ben Azzai, and Rabbi Akiva learn it from a verse, whereas Kant derives his imperative a priori). There are also those who distinguish between the addressees of the command (Kant insists on the universality of the command, with no dependence at all on the person in question, whereas Hillel speaks specifically of one's fellow), and the like. Below we shall propose a completely different distinction between the contents of these commands (although both will find their place within Jewish law).
In contrast to the universalist-humanist thinkers we have mentioned, it is difficult for a traditional student to interpret these sources in a truly universal sense. After all, it is well known that our attitude toward a Jew is supposed to differ from our attitude toward a gentile. And the accepted understanding is that 'your fellow' means your fellow in Torah and commandments (your fellow in Torah and commandments), one who also one who acts as one of your people (acts as part of your people).
And yet, from the discussion between Rabbi Akiva and Ben Azzai it emerges that the categorical imperative is apparently present in our sources, except that it is not universal, as Kant and those following in his wake saw it. It applies, at least, within the circle of the Jewish nation.
What is the meaning of this imperative? Does it indeed express an a priori rationale, as Kant saw it, or is it merely an implementation of the command And you shall love your fellow as yourself (love your fellow as yourself)? In what follows we will argue that this imperative is much broader than its moral aspect, and thereby we will detach it from the context of love of the Jewish people within which it ostensibly appears. It will then emerge that this is indeed an a priori rationale, as Kant thought.
C. The Debate in 'Tzohar' 30: The 'Categorical Imperative' in Jewish Law
As stated, in the previous issues a debate took place between Rabbis Nehorai and Friedman regarding priorities in consumption during the Sabbatical year. Rabbi Friedman writes in issue 29:
Our point of departure is that we support the sale permit (heter mekhira), and even propose it to farmers in cases of necessity and where there is no suitable alternative. Even so, produce grown under the sale permit will not be a source of supply for 'Otzar HaAretz'… We do not wish to turn the sale permit into a banner that we must defend. We are comfortable with our approach, which looks at the Sabbatical-year issue in a complex and comprehensive way, and tries to find macro-level solutions — for agriculture in the State of Israel and for the farmers…
And it is worth emphasizing: bringing produce grown under the sale permit into 'Otzar HaAretz' does not constitute support for the Jewish farmers who rely on the sale permit. This produce will be marketed in markets throughout the country and abroad, and 'Otzar HaAretz' makes no difference in this regard…
It may be understood from his words that, in his view, the permit is given to farmers when needed, but for consumers the instruction is to try not to consume fruits and vegetables produced under the sale permit.
To this Rabbi Nehorai objects in issue 30 (following Rabbi Weitman in issue 29), arguing that the two matters must be linked:
I am astonished! The sale permit is being trampled in the streets by substantial sectors of the religious public, and who will defend it against the slanderers? Shall we leave support for the farmers to the secular public, which buys in the large chains whatever comes to hand?… Can this be?! the farmer asks. Who will eat my produce? And the rabbi's answer (the one who rejects consumption under the permit) will be: there is a population that is not so strict; it will buy your merchandise, and therefore you will lose nothing.
Additional arguments arise in his remarks, but I will focus on these passages, since they are the important ones for our purposes and, in my opinion, they represent the foundations of the dispute.
At first glance it seems quite clear that Rabbi Friedman is right. The consumers of 'Otzar HaAretz' are insignificant in relation to the produce of the sale permit. Most consumption is by a public that buys this merchandise unwittingly, and therefore there is no reason to permit consumers to buy this produce if they have a better option before them (the court-administered distribution arrangement, otzar beit din, or imports from abroad). Rabbi Friedman also adds in his response that he of course does not support imposing a prohibition on consuming produce from the sale permit, but what follows from the permit for farmers is only a principled permission to consume, not necessarily a recommendation to do so. He brings an example from a Chabad custom, which he opposes for the same reason, of keeping a small amount of actual leavened food over Passover (contrary to the accepted legal recommendation for private individuals not to sell actual leavened food, because of concerns about the validity of the sale), in order to strengthen the validity of the sale of leavened food.
Before clarifying what I take to be the core of the dispute, and its connection to the previous sections, I will address a similar situation that arises with respect to leavened food that remained in Jewish possession over Passover. All my life I was accustomed, after Passover, to enter a store that had sold its leavened goods properly, and not buy the actual leavened food that had been sold, but only products that were milled and baked after Passover. After some years it occurred to me that this custom is unreasonable. If the business owner (a store or a factory) was permitted to sell actual leavened food because of substantial financial loss[15], then ipso facto it is permitted for me as a consumer as well to buy from him after Passover the merchandise that was sold in this way. It cannot be that the shopkeeper or factory owner was permitted, but the consumer was not permitted to buy from him. If consumers do not buy from him, what benefit did the permit provide to the business owner?
And here too a claim like Rabbi Friedman's can be raised. Generally speaking, most customers who enter the store, or who buy the factory's products, are not strict about the rule concerning leavened food that remained in Jewish possession over Passover, and therefore the question whether I buy from him or not is irrelevant. He will lose nothing, even if I consume only products milled and baked after Passover, in the most scrupulous fashion possible. So why instruct scrupulous consumers to buy from businesses that sold actual leavened food? Apparently one should avoid doing so, since there is no need whatsoever. Note well: the very basis of the permit is the substantial loss of the business owner, and in situations where there is no concern about loss (because of the consumption of a population that is not strict) there is apparently no reason to permit the strict consumers to eat it.
And yet, Rabbi Nehorai argues in the passage above: 'Shall we leave support for the farmers to the secular public?' If so, he assumes that even where there is no concern about loss (for in fact the consumption of the strict public is not significant), nevertheless, in his view, one should permit and even recommend that they too consume this produce. How can such a position be defended (which I myself also support)? Is a permit required where there is no real need at all?
Rabbi Nehorai's words contain several arguments, which I do not wish to elaborate on here (and it seems to me that not all of them are aimed at one another). Here we will concentrate only on the principled claim presented in the passage cited above. It seems that the only way to understand such a claim is by means of a 'categorical imperative,' in this Kantian sense. Rabbi Nehorai apparently assumes that one should not act in a way that one would not want to become a universal law. In other words: one should not rely on the secular public to consume produce grown under the sale permit, or on the sale of actual leavened food, even though this certainly solves the problem. The reason is that the state of affairs we would want to become a universal law is that everyone observe the commandments, and therefore everyone would be as strict as we are. In such a state it would certainly fall upon us to consume the produce of the permit (or of the sale of leavened food) in order to solve the problem of the farmers (or the business owners). Here it is already a universal law, and we have no one on whom to rely to do the work for us. If so, in a situation where Jewish law becomes a universal law there will no longer be a public that is not strict to solve our problems for us. But in light of the line of thought of the categorical imperative, the conclusion is that even in a situation where such a public exists, we must not rely on its existence, and one should permit and even recommend that the strict public consume produce under the permit. This is because any other behavior cannot serve as a universal law, according to the outlook of Jewish law. Thus, underlying Rabbi Nehorai's argument is a meta-halakhic intuition that is very reminiscent of Kant's categorical imperative[16].
Rabbi Friedman, by contrast, apparently thinks that such a consideration has no place in Jewish law. If there is a solution to the problem, even one that relies on the existence of sinners (or of people who are less strict), then there is no concern about loss, and therefore there is also no need to permit consumers to consume merchandise that is less scrupulous. Put differently: if the situation is not supposed to become a universal law, or at least so long as it is not one, we are under no obligation to behave as if that law were in fact universal. According to Rabbi Friedman's view, only when a problem actually arises (that is, when all Israel are scrupulous in Jewish law, or at least careful about its observance at the level relevant to consumption under the sale permit) will we need to permit consumers to consume this produce, for otherwise we empty the permit for the farmers of all content.
Thus, both sides speak of a 'general solution' and a 'systemic perspective,' but their conclusions diverge precisely at the point of their attitude toward the logic of the 'categorical imperative.' These are two kinds of universalism, and this dispute is somewhat reminiscent of the interpretation we proposed above of the dispute between Rabbi Akiva and Ben Azzai, though this is not the place to elaborate. To sharpen the matter, let us add that in contrast to both of these approaches, the Haredi approach rejects universalism altogether. There, they refuse from the outset to adopt a systemic approach of any kind. They seek only a solution for the individual person, without paying attention to the system as a whole, or to those who do not come to ask[17].
D. A Note on the Meaning of the Categorical Imperative in Jewish Law and in General
There is a significant innovation here in understanding the categorical imperative in general, and with respect to its application in Jewish law in particular. We must note that this application of the categorical imperative does not concern questions of morality or harm to others. Usually, applications of the categorical imperative all concern moral questions. From a moral standpoint, theft is forbidden because we would not want theft to become a universal law (put differently, and slightly differently: we would not want people to steal from us either)[18]. Murder or harming another is forbidden, since we would not want that to be done to us or to prevail in the world at all. These are formulations that justify moral principles dealing with refraining from harming others.
But here the abstention of strict consumers from consuming produce grown under the sale permit harms no one. The farmers will not lose out (as Rabbi Friedman rightly argues), because their produce will be bought by the secular public at large. The secular public will not lose out, since in any case it will consume the same thing. And the strict consumers will not lose out; on the contrary, they will receive produce that is more scrupulous from the standpoint of Jewish law. If so, why nevertheless instruct the strict consumers to buy produce grown under the sale permit? As we explained, the reason is a priori; that is, it does not stem from any facts or from any results or purposes. Simply because we would not want this to become a universal law.
This is the Kantian principle in its very embodiment, except that there is a significant expansion here. There is not only a basis here for moral obligations; there is a super-principle, or a rationale, that is relevant also to domains unrelated to morality: one should always act in a way that one would want to become a universal law.
As stated, this rationale has no clear source in Jewish law. The words of Rabbi Akiva and Ben Azzai were spoken in the moral context, and their subject is an interpretation of the command And you shall love your fellow as yourself (love your fellow as yourself). But this meta-halakhic intuition does not require a source (provided, of course, that there is no contradictory source). It is an a priori rationale, as Kant saw it as well.
It is true that there is room to view this differently. One may relate to this application of the categorical imperative as a principle that is itself a moral principle. According to this, the rule that we must act in a way that we would want to become a universal law is itself a moral command. Morality demands of us that we behave consistently, and not build ourselves up on the existence of those who do not behave lawfully.
True, this is a moral principle that does not concern harming another or refraining from such harm. It is a moral command that concerns a person's own behavior, even when he does not harm another. This command instructs him to behave consistently, and according to this proposal that demand lies within the moral sphere.
It is customary to think that moral commands concern only relations between one person and another (as opposed to 'musar,' in its Torah sense, rooted in the Musar movement), but here one can see another possibility: there are moral rules that concern only a person's own conduct, and not his relation to another. By way of example, let us note that acts of forbidden sexual relations or male homosexual intercourse, at least in cases where they are done with full consent, do not constitute harm to anyone. And yet there is ample room to regard them as behavior tainted by moral defects. The reason is that this is unworthy of the image of God that is implanted within us.
And here, unexpectedly, we return again to the dispute between Rabbi Akiva and Ben Azzai. Above we cited the explanation of their dispute, which makes it depend on the question whether morality derives from the duty toward one's fellow (this is Rabbi Akiva's view), that is, from one's relation to other people, or whether in its essence it derives from imitation of the Holy One, blessed be He, and not from duties toward another (this is Ben Azzai's view). Now we see another implication of Ben Azzai's conception, perhaps in the opposite direction: moral duty derives from imitation of the Holy One, blessed be He, and therefore it can also touch acts that harm no one.
On the face of it, according to Rabbi Akiva's approach, if he indeed sees moral duty as the result of obligation to another and not necessarily of imitation of the Holy One, blessed be He, there is no room for such a conclusion. Duties toward another concern only harm or non-harm to him, and not actions a person performs privately. If so, it may be that the two interpretations we proposed in this section depend on the dispute between Rabbi Akiva and Ben Azzai, and there is room for further dialectical analysis on this point.
E. Another Example: Desecration of the Sabbath
A common ruling is that in a place where there is a need to desecrate the Sabbath, one should not prefer to have this done by a secular Jew. When the commandment comes to one's hand, one should not let it slip away, and the decisors have already written that it is a commandment for this to be done by those fully responsible for the law, and not by women or minors or ignoramuses. Some have gone so far as to rule this even with respect to situations where there is no direct justification for desecrating the Sabbath, such as situations in which soldiers are required to protect vacationers and hikers who do these things on the Sabbath in prohibited ways. Here too, some decisors permit it on various grounds, and here too the question arises why not use soldiers who are not observant, and try to avoid these tasks.
Some will explain this by saying that secular Jews, too, are commanded to observe the Sabbath, and therefore there is no gain in their taking the task upon themselves. Yet in my article in 'Tzohar' 27 I argued in favor of the approach that a secular Jew (at least a heretic) is not legally a transgressor at all. Should one, at least according to that view, try to avoid such tasks?
I do not think so, and the reason is again the rationale of the categorical imperative. Since I would not want evading the task, if it is indeed required, to become a universal law, it will therefore not be correct for me to evade it myself, even where there are other solutions that are, ostensibly, more scrupulous from the standpoint of Jewish law. Solutions that rely on the existence of delinquent people and delinquent behavior cannot occupy a place in Jewish law, because we would not want them to become a universal law[19].
It seems to me that there is room in Jewish law for the categorical imperative, in both of its meanings. In its narrow moral sense, it derives, at least according to some views, from the verse And you shall love your fellow as yourself[20]. And in its broader sense, it is the product of an a priori intuition, and as such it cannot be located only within a specific context; its applicability is entirely general. Whoever accepts this form of thought must apply it in every sphere, moral or otherwise. The examples of desecrating the Sabbath or of consuming produce grown under a sale permit or under the sale of leavened food are good examples of the broader meaning of this rationale.
[1] He addresses this in three of his books: Groundwork of the Metaphysics of Morals, Critique of Practical Reason, and The Metaphysics of Morals. See also Hugo Bergmann's book The Philosophy of Immanuel Kant, Magnes, Jerusalem 1980 (second edition), especially the chapter 'Ethics'.
[2] Karl Rosenkranz (one of the first to publish a complete edition of Kant's writings) already said of Kantian ethics that everything Kant destroyed with the scalpel of dissection in the Critique of Pure Reason rose again to life and new vitality in the Critique of Practical Reason. This refers to belief in the immortality of the soul, in the existence of the God of justice and goodness, and in religiosity in general.
[3] The categorical principle itself, and Kantian ethics in general, do indeed seem to me valid and correct. Only the proof that he offers, which purports to be a priori and deductive, is not really such. There are many examples, in philosophy and outside it, of an invalid argument that proves a correct claim. See, on this matter, the last paragraph of my response to Rabbi Yoel Bin-Nun's article, Akdamot 11; this is not the place to elaborate.
[4] Already in its original formulation the argument is circular, and not without reason; this is not the place to elaborate.
[5] Kant devotes no small effort to showing that there is no coercion here, since this will is the highest, and perhaps the only, expression of human choice. In his view, freedom and liberty are conditions for the moral demand and are not opposed to it. This claim is reminiscent of Rabbi Abraham Isaac Kook's approach (see, for example, the essay 'Our Freedom,' in Ma'amarei HaRe'iyah, p. 157 and following, throughout the section dealing with Passover), which sees the aspiration to the good and the inclinations implanted within us as an expression of our freedom, and not as systems that enslave us, in the spirit of Only the servant of God is truly free (the servant of God alone is free). We will not deal here with this aspect of Kantian ethics.
[6] The very fact that the content of the moral imperative depends on the question of what I 'want' to become a universal law means that the application also depends on facts, for my wants are facts. Nor should 'want' in this context be interpreted to mean 'choose' (on the plane of values), since then the imperative is emptied of content and becomes a tautology (= an empty logical identity): the good is what appears good in your eyes. See also the previous note on the circularity of the formulation.
[7] For example (an example brought by Kant himself), in a time of distress a person makes a promise to his fellow while from the outset his intention is not to fulfill that promise. Is this proper? Apparently we would not want this to become a universal law, namely, not to keep promises. On the other hand, perhaps in a time of distress (certainly if the fellow initiated it and caused it) it is indeed fitting that this become a universal law?
Incidentally, I would note that in a certain formulation one could also connect to the categorical imperative the legal rule of making no distinctions between cases, and even more so the principle that things forbidden because of misleading appearances should not be done even in private rooms. According to this proposal, the meaning of the rule regarding misleading appearances is: do not do, even where it is seemingly justified, what you would not want to be done in other circumstances. Of course, the same challenge that we presented at the beginning of the note may be raised regarding this interpretation as well.
There are many other critiques of Kantian theory, and a considerable part of them relate to different problems in its application.
[8] See Midrash Lekach Tov on the above verse, and the translations there, and many others.
[9] It is interesting that in different sources the order is reversed, and there is a dispute over which is the greater principle. In Sifra, Kedoshim, the version opens with Rabbi Akiva's words as a great principle in the Torah, and Ben Azzai says that his principle is greater than that. But in Bereshit Rabbati (p. 57) the version is reversed. Ben Azzai opens, and Rabbi Akiva answers him that his principle is greater than that.
What is interesting is that in both of these versions the conclusion is that both Tannaim agree about both of these rules as great principles, and the dispute is only over which of them is greater.
[10] Theodor likewise noted this in his edition of Genesis Rabbah. See also the collection of essays by H. Y. Roth, Religion and Human Values, Magnes, Jerusalem 1973, pp. 95-97, and Urbach's book, The Sages — Chapters on Beliefs and Opinions, p. 526.
[11] Translated by Zvi Wislawski, Bialik Institute, Jerusalem 1972, in the eighth section and also at the beginning of the ninth section.
[12] Roth also draws attention to Rabbi Akiva's apparently universalist saying in Avot: Beloved is man, for he was created in the image (Beloved is the human being, for he was created in the image) (Avot 3:14). However, the contradiction with the next mishnah, which speaks of Beloved are Israel, for they were called children of the Omnipresent (Beloved are Israel, for they were called children of the Omnipresent), is well known, and this is not the place to elaborate.
[13] These are two different formulations. The very fact that every human being was created in the image of God can itself be the basis for obligation toward the other, and I cannot elaborate on this here.
[14] In the note above we pointed out that from the formulation of parallel midrashim it emerges that both rules are accepted by both Tannaim, and the dispute is only over the question of which of the rules is greater.
[15] I will not refrain here from remarking that business owners ordinarily should have no problem at all with the sale of leavened food, for from their perspective the intention in the sale is certainly absolute. Unlike a private person, who may not really wish or seriously intend to sell his food, business owners certainly want people to buy their merchandise. If so, it is unclear: what concern is there at all with their sale of leavened food? Perhaps the lack of intention lies on the part of the buyer (the gentile), who does not relate to such a transaction seriously (since he knows that in the end he will not actually take the goods), but I cannot elaborate on this here.
[16] Editor's note (A. E.): Nevertheless, it is possible that Rabbi Nehorai is not arguing that we are obligated to consume produce grown under the sale permit because if everyone were religious someone would have to consume it. Rather, he may be arguing that precisely the religious public should consume produce grown under the sale permit in order to defend it, and not create among the farmers a severe sense of insult, as though they were doing something whose legitimacy is so doubtful that only secular people may eat it.
[17] We should note that each side raises additional arguments beyond these points, and perhaps they are not at all aware of this aspect that underlies each of their positions (for this analysis renders almost the entire debate between them unnecessary). In any case, it seems that the approach of the 'categorical imperative' lies, consciously or not, at the root of their dispute.
[18] This may be another difference between Hillel the Elder and Rabbi Akiva, on the one hand, and Kant's approach, on the other. If you wish, this is precisely the very difference that we will present below in this section.
[19] I add here two comments:
A. Of course, in the situation to which I aspire (= the universal law) there will also be no Sabbath desecrators, and consequently there will be no need to carry out such tasks. But the existence of offenders is certainly a fact that Jewish law takes into account. Only the directive to the person who acts must be decided according to the consideration of the categorical imperative. The categorical imperative does not determine reality or circumstances, but normative directives within a given reality.
B. To sharpen the meaning of my argument, I would note that at first glance there might have been room to raise the argument presented in this section also from the ruling according to which the Sabbath is desecrated by adults, and not by minors, and according to some views not by gentiles either (of course, if we understand this as part of the core law and not as a special directive). But this would be a mistake. Even in a situation where Jewish law becomes a universal law, minors and gentiles would not be obligated to observe the Sabbath. Therefore the categorical imperative does not concern these questions, but only the question whether one may avail oneself of someone who is obligated but commits transgressions and does not act in accordance with that obligation.
[20] Even there, however, its primary expression is found in the formulations of the Sages and not in the verse itself. Why did the Sages choose to interpret the verse precisely in this way? It seems that this is another indication of the a priori and intuitive root of this rationale, even in the standard moral context of the categorical imperative.