The Consideration of External Values in Jewish Law

With God's help

2011

Values ‘from outside’

We have been asked to discuss the question of importing values ‘from outside,’ which arose last Sabbath. Seemingly, the first question that must be discussed is: what is called ‘outside’? Outside the Written Torah? Outside rabbinic literature? Outside the medieval and later authorities? Is our own reasoning ‘outside,’ or only values that we have drawn from the surrounding culture? Can one at all distinguish between values that come from within and what is absorbed from the environment? After all, a person is a product of the landscape of his birthplace. Should we at all try to neutralize external influences?

Torah-level reasoning

With respect to reasoning, this is an old issue. In Berakhot 35a we find a passage that seeks a source for the law of reciting a blessing before eating. The conclusion of the passage is that this is based on reasoning:

Rather, it is a matter of reasoning: it is forbidden for a person to derive benefit from this world without a blessing.

Now Pnei Yehoshua there (s.v. …) comments:

In the Talmud: ‘Rather, it is reasoning: it is forbidden for a person…’ From the language of all the decisors it appears that according to this conclusion here, all blessings over enjoyment are rabbinic, except for Grace after Meals alone; and according to Rashba, the after-blessing on the seven species is also of Torah origin, but regarding the other blessings he agrees. In my humble opinion, however, this is difficult, for throughout the Talmud it appears that anything derived from reasoning is of Torah origin; indeed, the Talmud asks, ‘Why do I need a verse? It is reasoning.’ And in truth, the language of Tosafot is not decisive, for it is possible that when they wrote that the verse cited above is merely a support, perhaps they meant precisely this point itself: since it is reasoning, the verse is no longer needed.

However, it seems to me that even if you should say that this reasoning too is of Torah origin, it still works out well that we rule leniently in cases of doubt about blessings, because there is no basis for stringency: since it is forbidden to recite an unnecessary blessing, that reasoning falls away automatically. And for this very reason it also works out well that one who is impure from a seminal emission does not bless before food, because since he is obligated only by reasoning and he refrains because of the honor of the Divine Name, that reasoning does not apply. Moreover, with respect to food he does bless afterward; if so, he is not deriving benefit from this world without a blessing. So it seems to me, though it still requires further examination; see the appendix.

He assumes that what is derived by reasoning has Torah status (and his proof is that the Talmud says, ‘Why do I need a verse? It is reasoning’), and therefore a doubt about it should require stringency. His answer is strained, for if reasoning is Torah-level, then this is not an unnecessary blessing (all the more so since the prohibition of an unnecessary blessing is itself subject to a dispute among the medieval authorities as to whether it is rabbinic or Torah-level). It is analogous to a doubt regarding Grace after Meals, which is of Torah origin.

Elsewhere I argued that in fact a doubt concerning blessings over enjoyment should be treated stringently. One must remember, however, that even if blessings over enjoyment are of Torah origin, that applies only to the basic obligation to give thanks (to avoid misuse of sacred property). But the wording of the blessing and its details are certainly rabbinic. Therefore, in a case of doubt one should thank the Holy One, blessed be He, in order to avoid the concern of misuse, but there is no justification for mentioning God’s name on the basis of a doubtful unnecessary blessing.

There I also brought the view of the students of Rabbenu Yonah, who wrote in two places in that passage that one who eats without a blessing brings a guilt-offering for misuse. This proves that in their view the obligation is of Torah origin, for otherwise it would be non-sacred slaughter in the Temple courtyard.

However, Tzelach there wrote:

As for what the eminent author of Pnei Yehoshua wrote, that since the conclusion is that it is reasoning, it is automatically of Torah origin, for we do find that they say, ‘Why do I need a verse? It is reasoning’—hence reasoning is effective like a verse. I say that this applies only to a legal rule among existing laws, such as in Ketubot 22a, ‘From where do we know that the mouth that prohibited is the mouth that permitted?’ and in Bava Kamma 46b, ‘From where do we know that the burden of proof lies on the claimant?’ and the like; in those places the Talmud asks, ‘Why do I need a verse? It is reasoning.’ But to say of something that is based on reasoning that it counts as a Torah commandment—that we have not heard. And if that were so, then all rational commandments were written for nothing. Moreover, this reasoning—that it is forbidden to benefit from this world without a blessing—applies to all human beings; if so, blessings over enjoyment would also be obligatory for Noahides. Astonishing! Rather, the intention is certainly that because it is a matter of reasoning, the Sages instituted blessings over enjoyment; and this is true for all the other fruit blessings. But regarding bread there is room to discuss whether this a fortiori argument is a full-fledged a fortiori argument, which would make it Torah-level, or not.

It appears that he means the following: a halakhic detail within a given commandment—if it emerges from reasoning—has Torah status. But to derive an entirely new law from reasoning and treat it as Torah-level: that we have not heard. He adds that on that basis even Noahides would be obligated to recite blessings.

According to my approach, it seems possible that Noahides indeed do have such an obligation, only not with God’s name and kingship, but merely to give thanks for food (to avoid misuse). Moreover, perhaps Noahides who eat are not committing misuse, because the Holy One, blessed be He, has given them their portion (like the distinction between the Land of Israel and the land of Egypt with respect to drinking water from the rain of heaven).

For further sources on this among the medieval authorities, see the essay ‘S'vara De-oraita’ at the beginning of Mefa'ne'ah Tzefunot by R. M. M. Kasher.

Conclusion 1: It therefore seems that reasoning has a clear place in study and in halakhic ruling.

What kind of reasoning is at issue?

In principle one can raise two kinds of reasoning that require discussion: interpretive reasoning (what did the Torah mean), and substantive reasoning (what seems correct to me, or what is God’s will).

One must further inquire, regarding substantive reasoning, whether it is drawn from the Torah or can also come from our own intuition. And if it comes from our own intuition, should one try to neutralize the influence of the external environment?

In the Berakhot passage we are dealing with substantive reasoning, for it is not interpreting any particular law. Perhaps this is precisely what Tzelach meant in what he wrote; that is, in his view only interpretive reasonings are Torah-level.

From where are these reasonings drawn? If they are drawn from some other place in the Torah, that is completely trivial. It is obvious that we interpret the Torah from within itself according to our understanding. Therefore it seems that his intention includes reasonings that do not come from the Torah. Indeed, the rule that the burden of proof lies on the claimant, or the rule ‘the mouth that prohibited is the mouth that permitted,’ are laws derived by reasoning, and the Talmud says that no scriptural source need be brought for them. That is, we are speaking here also of external reasonings.

Of course, in the context of clarifying facts in a religious court, it is reasonable to use such reasonings, for common sense is the instrument for clarifying reality (and as is well known, Maimonides at the beginning of chapter 24 of the Laws of the Sanhedrin cites the Rif and the Geonim that in monetary matters a judge should follow what his mind inclines toward. Compare his words there with the beginning of chapter 20; this is an old issue).

And in Berakhot 4b we find:

For Rabbi Yohanan said: Who is one destined for the World to Come? One who juxtaposes redemption to the evening prayer. Rabbi Yehoshua ben Levi says: They instituted the prayers in between. What is the basis of their dispute? If you wish, say it is a verse; and if you wish, say it is reasoning. If you wish, say it is reasoning: Rabbi Yohanan holds that there is redemption at night as well, but full redemption does not occur until morning; and Rabbi Yehoshua ben Levi holds that since it does not occur until morning, it is not full redemption. And if you wish, say it is a verse—they both expounded the same verse, as it is written: ‘when you lie down and when you rise up’ (Deut. 6). Rabbi Yohanan holds: it links lying down to rising up—just as in the morning the Shema is followed by prayer, so too at night the Shema is followed by prayer; and Rabbi Yehoshua ben Levi holds: it links lying down to rising up—just as in the morning the Shema is recited close to getting out of bed, so too at night the Shema is recited close to going to bed.

Here the reasoning is apparently Torah-based and not mere gut intuition. But the Torah only determines the order and the time of redemption, and the fact that one must follow the order in order to define redemption and prayer is certainly their own reasoning. Even so, there is still no reasoning here drawn from an external source, only one’s own intuition.

Likewise in Berakhot 39a:

Shall we say that this depends on an earlier tannaitic dispute? For there were two students sitting before Bar Kappara. They brought before him cabbage, Damascene plums, and partridges. Bar Kappara gave one of them permission to recite the blessing. He jumped up and recited the blessing over the partridges, and his fellow mocked him. Bar Kappara became angry and said: It is not with the one who recited the blessing that I am angry, but with the one who mocked him I am angry. If your fellow is like one who has never tasted meat in his life, why did you mock him? He then reconsidered and said: It is not with the one who mocked that I am angry, but with the one who recited the blessing I am angry. And he said: If there is no wisdom here, is there no old age here? It was taught: and both of them did not live out the year. What, do they not disagree about this: the one who blessed holds that cooked vegetables and partridges both receive the blessing ‘by whose word all things came to be,’ and therefore what is personally preferred comes first; while the one who mocked holds that cooked vegetables receive ‘who creates the fruit of the ground’ and partridges receive ‘by whose word all things came to be,’ and therefore produce takes precedence? No. Everyone agrees that both cooked vegetables and partridges receive ‘by whose word all things came to be,’ and here they disagree about this reasoning: one master holds that what is personally preferred takes precedence, and the other holds that cabbage takes precedence because it is nourishing.

Here again we are dealing with intuitive reasonings (they have no source in the Torah and are not midrash), and they concern blessings. Again, they are not drawn from outside.

The Talmud is full of derivations from reasoning, and certainly their status is Torah-level (‘what difference does it make whether one brings in or takes out’ in Sabbath law, and many more). To be sure, there it is a detail within the labor of transferring, and not the innovation of a wholly new law.

Even the rule that one must be killed rather than transgress in the case of murder is based on the reasoning ‘what makes you think your blood is redder?’ (see Pesahim 25b), but there too it is an intuitive reasoning that is not drawn from outside and does not create a wholly new law (although one can analyze whether it is proper to regard it as a detail within an existing law).

A search in the Bar-Ilan Responsa Project reveals hundreds of places that use reasoning. But in a large portion of those places the term merely indicates understanding, and not necessarily reasoning as opposed to derivation from an explicit source.

As an example of reasoning that innovates a law, in addition to the Pnei Yehoshua above, one should cite Nachmanides on the prohibition of mixed species (kilayim), from which some derive a novel prohibition against creating things contrary to nature (cloning or genetic manipulation).

Conclusion 2: It therefore seems that even if one wishes to innovate new laws by means of reasoning, there is room for that as well (even if perhaps not everyone agrees).

Reasonings from outside

With respect to scientific knowledge and the like, one can certainly learn from gentiles. The words of Maimonides in the Guide of the Perplexed, and of his son in the epistle printed at the beginning of Ein Yaakov, are well known regarding the discussion in tractate Pesahim about whether the sphere stands still and the constellations revolve: the main lesson of the passage is that one is obligated to accept the truth from whoever says it. True, there are other approaches to this, but my purpose here is only to show the possibility. But there the matter concerns facts. Is the same true with respect to values?

In chapter 6 of Eight Chapters, Maimonides raises a famous question:

The philosophers have said that the self-controlled person, although he performs noble actions—he does what is good, yet he desires evil actions and yearns for them, and he struggles with his inclination, and his deeds oppose what his power, desire, and character incline him toward; he does what is good, yet is distressed in doing it. But the virtuous person is drawn in his actions after what his desire and disposition awaken in him, and he does what is good while desiring and yearning for it. And the philosophers agree that the virtuous person is better and more complete than the self-controlled person. However, they said, the self-controlled person may stand in the place where the virtuous person stands in many matters, but his rank is necessarily lower, because he desires the evil act, and although he does not do it, his craving for it is an evil trait in the soul. Solomon already said something like this: ‘The soul of the wicked desires evil’ (Prov. 21:10). And regarding the joy of the virtuous in doing good deeds, and the distress of one who is not virtuous in doing them, there is the verse: ‘It is joy to the righteous to do justice, and ruin to the workers of iniquity’ (Prov. 21:15). This is what appears from the words of Scripture, in accord with what the philosophers mentioned.

And when we investigated the words of the Sages on this matter, we found that in their view one who desires transgressions and yearns for them is better and more complete than one who does not desire them and is not distressed at refraining from them. So much so that they said that the better and more complete a person is, the stronger will be his desire for transgressions and his distress at leaving them. They brought stories about this, and said: ‘Whoever is greater than his fellow, his inclination is greater than his.’ Not only that, but they said that the reward of the self-controlled person is great in proportion to the pain he experiences in mastering himself, as they said: ‘According to the pain is the reward.’ Moreover, they instructed that a person should master himself, and warned against saying: ‘By my nature I have no desire for this transgression; even if the Torah had not forbidden it.’ Rather, as they said: ‘Rabban Shimon ben Gamliel says: A person should not say: I do not want to eat meat with milk, I do not want to wear shatnez, I do not want relations with the forbidden woman. Rather, he should say: I do want it, but what can I do? My Father in heaven has decreed it upon me.’

And according to the plain meaning of these two sets of statements at first thought, the two sayings contradict one another. But this is not so; rather, both are true, and there is no dispute between them at all.

Maimonides sees the contradiction between the words of the Sages and the words of the philosophers as a difficulty that requires resolution (and it is strained to say that this is merely a pedagogical presentation of the matter whose purpose is to arrive at the answer, and that there is no real difficulty here).

And in many other places, values are learned from ordinary social practice (regarding attitudes toward flesh-and-blood kings, from common expressions, and so on).

For the sake of brevity, I shall skip over all these questions, for which many proofs can be adduced, and instead cite the words of three of the greatest later authorities regarding rights in intellectual property; they already say everything.

The author of Sho’el U-Meshiv, first edition, part 1, sec. 44, writes as follows:

For it is certainly the case that when an author prints a new book and merits that his words are accepted throughout the world, it is obvious that he has a perpetual right in it… Shall our complete Torah be no better than their idle talk?! Reason rejects such a notion, and every day we see in practice that one who prints a work has rights in it, and so do his heirs.

Rabbi Shimon Shkop, at the beginning of his novellae to Bava Kamma, writes as follows:

Just as in matters that concern a person’s rights it is agreed, according to Torah law and the laws of the nations, that whoever invents something new in the world is its owner for every legal purpose…

Rabbi Wosner, in his approbation to the book Emek HaMishpat, part 4, writes:

And regarding the substance of the Jewish law itself, it is certainly the Torah’s inclination that there is a prohibition of theft, etc., in taking what another person has created entirely anew, whether in a book of Jewish law and the like, and likewise in other things; and so too under the law of the kingdom everywhere in the world.[1]

And indeed in the responsa Pe’at Sadecha (by Rabbi Monck, the zealot from Haifa), sec. 158, he criticizes them for learning from the manners of the nations—what have they to do with us?—and writes that the permission to violate copyright is as obvious as daylight (literally: ‘as obvious as an egg in dairy sauce’!).

Here we are speaking of substantive rather than interpretive reasoning (indeed, it runs counter to the plain sense of the sources). It innovates a new law (or perhaps this is a detail within the prohibition of theft?). And it is consciously drawn also from gentiles (and from one’s own intuition, of course). In any event, they regard the conventions of the gentiles as a source that is not invalid for reinforcing their reasoning.

Even here, however, there is room for some discussion, since social agreement certainly has a place in monetary law, which is fundamentally convention-based law (determined by custom, and Rabbi Shimon Shkop’s theory of civil law is well known).

It seems that in moral matters it is obvious that one should learn morality from outside. After all, had the Torah not been given, we would learn from a cat and from an ant—so why not learn from gentiles? Especially if we did not absorb this from gentiles but simply agree with what they say.

Even when the Torah commands ‘you shall do what is upright and good,’ it does not specify what is upright and good. One might have said that this means only what is learned from the Torah. But that is strained, if only because what we learn from the Torah we would in any case learn and practice. Therefore it seems clear that we rely on our conscience and on our reasoning, and it is quite clear that this is a universal matter.

The legal commands incumbent on Noahides are likewise not specified (according to Maimonides; Nachmanides holds that all civil law applies to them), and they are to establish a proper and upright norm, nothing more.

Conclusion 3: It seems that one may draw reasonings from outside as well. More than that, it does not appear that one is obligated to neutralize outside influences; there are decisors who do this consciously. One may learn moral values from gentiles.

Note well: I do not mean the obligation of the law of the kingdom, or desecration of God’s name. I mean learning values that obligate us in and of themselves.

The general discussion

Regarding the question whether one should aspire to external values, it seems simple that there is no impediment to doing so wherever Jewish law allows it. It even seems to me that one is obligated to act in that way if the matter seems upright in our eyes (we are not speaking of someone who does so only because gentiles do so. If it seems correct to us, there is no reason to fear conscious or unconscious influences, so long as it appears upright to us). Usually, one who acts this way is accused of being lenient. Beyond the question whether there is really any problem with being lenient, one must ask whether this is leniency in Jewish law or stringency in values. That is of course only if one sees values as something binding and not merely legitimate. For if not, then indeed it is proper to be stringent whenever possible.

As a rule, the accusation that some value is borrowed from outside is irrelevant. Values must be judged according to what they are and not according to their source. If there are refined gentiles, why should we not be like the most refined among the nations? And if there is a corrupt value that was not borrowed from outside, one should not act in accordance with it either. Therefore the question of source is not important.

But it seems to me that this whole general question is only theoretical: there are no values that are truly external. Any value that seems upright to us can be given a source from within. After all, when the Sages and the medieval authorities saw a proper mode of conduct, they went and found it in the Torah and in midrash.

For example, the value of equality exists in Jewish law (for example in the discussion of the law of the kingdom is law, which does not apply if the law is not egalitarian. This principle has no clear source, but it seems obvious to the decisors and entered Jewish law). But it is clear that there is no full equality in the Torah (priests, Levites, Jews and gentiles, and the like).

Should we strive to reduce inequality? Why not, so long as this is done within the framework of Jewish law. A non-egalitarian law will be narrowed as much as possible if the value of equality matters to us. Usually, when I am accused of being influenced from outside, it will be in a place where the accuser simply does not agree with my step or my interpretation as such, and not really as a debate about outside influences. Outside influence is a rhetorical tool and not a genuine argument.

A thought experiment: does anyone know of a value he truly advocates and yet cannot find support for in our sources?

So much for conduct guided by values. But the important, subtle, and problematic question lies within the domain of Jewish law: can such values influence halakhic decision-making? If so, where? And to what extent?

It is self-evident that halakhic ruling is influenced by values. See the differences between contemporary rabbis in their halakhic approaches to current issues, most of which are predictable from their worldviews (the law of the kingdom in the Land of Israel; the commandment of settling the land; equality of women; attitudes toward gentiles). Already among the Sages one can see value influences on halakhic ruling; see Moshe Halbertal’s book, Interpretive Revolutions in Their Formation.

If so, in laws newly developed in our time values certainly exert influence, and there is no problem with that. The question is what about interpretation within existing Jewish law, or choosing between earlier halakhic opinions and deciding which to follow today.

There are several possible situations here: a lacuna (a new law); a case in which there are two earlier opinions; a case of doubt; and a case in which a frontal move against accepted law would be required.

Everything depends on how important the value is, and how clear the Jewish law is on the other side. Therefore, in order to make the discussion concrete, it is important to consider a few examples.

A distinction between two mechanisms

There are two ways of taking values into account in Jewish law:

1. Taking account of reality as shaped by values. Clearly, in today’s reality people attach great importance to the value of equality of women. We can take this into account as a factual datum, for one must act in a way that people can connect with, so that there not be desecration of God’s name, and one must take account of people’s needs (what counts as a great need? For example: who is considered poor?).

In the previous Sabbaths several points were raised that touched on the question of what bothers people today and what seems important to them (Rabbanit Michal regarding the immersion of a female convert in the presence of rabbis).

1. Taking account of the values themselves, as binding values. This is of course the more problematic mechanism.

Sometimes the discussions of these two become mixed together, since people who want to push an agenda, for or against, use both kinds of arguments.

Example: the laws of contracts and bailees nowadays. One can view Israeli or American law as a practice that binds as the custom of the majority of people. One can view it as a binding norm by virtue of the law of the kingdom. And sometimes perhaps one can view it as a proper custom that is binding in itself.

Awareness

This also raises the question of awareness. Usually decisors in the past were not aware of the influences acting upon them (as a rule, that is the concern of scholars of Jewish law, not of decisors). Today we are more aware of the space within which we operate.

For example, regarding sanctification of God’s name, the dispute between the sages of Spain (Maimonides) and the sages of Ashkenaz (the Tosafists) is well known, and it has already been noted that each was influenced by his surroundings and the circumstances in which he lived. See my response to Rabbi Benny Lau in Akdamot 10 and 11, regarding the confusion between decisor and scholar (on saving a gentile on the Sabbath, according to A. Rosenthal).

It is not clear whether awareness is an advantage or a disadvantage, but it is fairly clear that this is the reason for the ossification that contemporary decisors impose on themselves (because they are aware of the outside influences upon them). On the other hand, there are those who argue that one should bear the banner of awareness proudly, and that our greater awareness is an advantage rather than a disadvantage.

Rabbi Kook (Iggerot HaRe’iyah, part 1, sec. 90):

And if a question should arise regarding some law in the Torah, such that according to moral concepts it would seem that it ought to be understood differently, then if in truth, by the authority of the Great Court, it is decided that this law was stated only under those conditions that no longer exist, a source for this will certainly be found in the Torah.

Examples

An expansion of several of the examples, and discussion, may be seen here: http://ravtzair.blogspot.com/2009/04/blog-post_21.html (at the beginning there is a reference to the previous articles, and there is also a sixth continuation that can be found on Google).

The last example, concerning the categorical imperative, is discussed in greater detail in the article that I append below.

1. The dispute surrounding the claim of a rebellious wife and the claim ‘he is repulsive to me.’ Maimonides, Laws of Marriage 14:8: a woman is not like a captive, and therefore she can claim ‘he is repulsive to me’ and demand a divorce writ. Against this: according to some of the medieval authorities—her eyes are set on another man (so what? The husband, after all, is permitted to do so). According to Rashba—revulsion is not grounds. Rabbi Kapach writes that nowadays, when women are promiscuous, this rationale no longer applies (since in any case they will go with another man). This is similar to the enactment of the Geonim that one should divorce in cases of ‘he is repulsive to me’ and of a rebellious wife, since they feared that the women’s eyes would turn to another.

2. Even Ha-Ezer sec. 82, para. 8:

If the mother does not wish her children to remain with her after she has weaned them, whether sons or daughters, the choice is hers; she gives them to their father, or if they have no father she leaves them to the community, and they care for them, whether sons or daughters.

And so throughout sec. 82, regarding the obligations of the woman and the husband toward the children; see there.

3. Even Ha-Ezer sec. 73, para. 6:

For his sons and daughters until the age of six, he is obligated to provide clothing, necessary utensils, and housing, and he does not provide according to his wealth, but only according to their needs.

Can this be paid from the tithe of money?

The Rabbinate’s enactment: until age 18.

4. Megillah 23a: a woman should not read from the Torah because of the dignity of the congregation.

5. Saving a gentile on the Sabbath. Attitudes toward gentiles. Selling apartments to gentiles. Who is a resident alien?

6. A daughter’s inheritance, and bypassing Torah law.

Rabbi Dichovsky (‘The Law of Partnership,’ Tehumin, vol. 18, pp. 30–31):

I was young and I am still not old. And among the thousands of inheritance cases over which I have presided, there was not even one case in which we divided the estate among the sons alone, while disinheriting the daughter and the wife. This refers also to inheritance cases from Haredi families meticulous in minor and major commandments alike, including families of great Torah scholars.

7. Women’s singing? In the army?

8. Prozbul.

9. Separation from gentiles. Their wine (where the beverage is not intoxicating, or not made from grapes). Gentile bread and Gentile cooked food. Narrowing the prohibition and treating it as a formal prohibition.

10. Should one take the categorical imperative into account in Jewish law? See my article appended below.

One should discuss whether this is a value-influence. In Kant, the imperative is not really a value, but rather a rule that determines values. But one can also view it as a value (the requirement of a non-discriminatory law).

It is important to understand that for him this is the result of a philosophical derivation, and not some particular moral stance. Therefore it may have a different status (as can be seen from the article, there is such an intuition in Jewish law as well).

With God's help

The ‘categorical imperative’ in Jewish law

Introduction

The aspect presented in this article has troubled me for some time, but it seems that the debate conducted in the most recent issue of Tzohar, between Rabbis Nehorai and Friedman, regarding the proper pattern of consumption during the Sabbatical year, reflects it in a very clear way. I therefore thought that this was the place and time to define it, so that it might be discussed directly. I note that what follows is not written as a response to what was said in the previous issue, although I think it will contain a clarification of the fundamental point of disagreement, and also an expression of a position on the matter in dispute. The purpose of this article is not to clarify the point of dispute, but to use that dispute in order to clarify a more general meta-halakhic principle.

First, we must preface a short philosophical introduction, which will be needed for what follows. We shall briefly present Kant’s ‘categorical imperative,’ and touch briefly on those aspects of it that bear on the discussion below.

A. Kant’s ‘categorical imperative’

One of the issues that occupied the 18th-century German philosopher Immanuel Kant was the logical basis of ethics.[2] Kant rejected grounding ethics on empirical elements. Ethics is supposed to guide human beings regarding what is good and proper, not to learn this from their actual behavior (= practical anthropology). Therefore it cannot be derived from any facts whatsoever (such as the striving for happiness implanted in us, the moral feeling, or fear of God implanted in us, and the like). Incidentally, I note that at the end of the discussion Kant also saw ethics as a kind of proof of God’s existence, after he rejected all the other possibilities (three in number, according to his classification) for proving His existence.[3] What reason did not allow re-entered by way of his ethics.

The way in which Kant used 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: a ‘transcendental’ argument. Therefore, in our context too, 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.

Through a rather tortuous argument, which purports to be deductive (= logically necessary) in character, but in my opinion is not entirely valid logically,[4] Kant claims that the supreme moral principle is the categorical imperative, and he even proposes a possible a priori grounding for it.

He begins from the premise that the human being is a rational being, and nothing more. Without the assistance of 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. Therefore we must define the concept of ‘the good’ as such, and from within it seek a grounding for our obligation toward it.

Kant opens the Groundwork of the Metaphysics of Morals (the book that presents the argument in the clearest and sharpest way) with the claim that there is nothing in the world that is good always and without qualification except the good will itself.[5] Any positive trait, or good behavior, can sometimes be unworthy, or at least neutral, especially when it stems from the wrong motive (that is, not from the bare desire to do good alone).

He also clearly distinguishes between the good will and the inclination toward the good and its consequences. The good will is good not because of its consequences or purposes, but by virtue of willing alone. Its utility and fruitfulness are irrelevant in this regard. Both the inclination and the consequences are facts, and as such they are irrelevant 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 teaching is moral duty. This is the motivation that the moral will seeks to fulfill. Because the human being is affected by drives and inclinations, the moral law must appear to him in the form of a command, something as if imposed upon him.[6] Such a command can be hypothetical (= conditional) or categorical. The 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, independent of goals or any facts. Therefore such an imperative must be universal and uniform, and independent both of the person to whom it is addressed and of the object of the action.

Kant’s conclusion is that the formula of the categorical imperative of morality must be this:

Perform your actions only according to that practical rule which, in adopting it, you could also will to become a universal law.

The specific practical rule that appears in this formulation is a concrete behavioral directive. 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 guidance that one should not cause suffering to another person, since I would not want there to be a universal law allowing the causing of suffering to human beings. However, as a matter of fact, there are people for whom action A causes suffering, while for someone else action A specifically benefits him, and action B causes him suffering. In this sense, the application of the categorical imperative depends on particular facts and circumstances. The imperative itself is detached from the factual plane, but its applications certainly are not.[7] Here we are already entering the question of applying the categorical imperative, which is extremely complex, and this is not the place.[8]

Thus far, a brief introduction to Kant’s categorical imperative.

B. ‘What is hateful to you, do not do to your fellow’

At first glance, we find a dictum very similar to Kant’s also among the Sages. In the passage in Shabbat 31a it says:

Again there was an incident with a certain gentile who came before Shammai and said to him: Convert me on condition that you teach me the whole Torah while I stand on one foot. He pushed him away with the builder’s cubit in his hand. He came before Hillel; Hillel converted him. He said to him: What is hateful to you, do not do to your fellow—that is the whole Torah, and the rest is commentary. Go and learn.

Hillel the Elder bases the entire Torah on the principle that one must not do to one’s fellow what one would not want done to oneself. Hillel does not mention the verse ‘love your neighbor as yourself’ (Leviticus 19:18), but some commentators have already noted that this is its source.[9]

Maimonides too, at the beginning of chapter 14 of the Laws of Mourning, defines:

Everything that you want others to do to you, you should do to your brother.

That is, he defines the obligation to do for another what I would want others to do for me. And likewise in Sefer HaMitzvot, commandment 206:

And commandment 206 is that He commanded us to love each of us for one another as we love ourselves, and that my compassion and love for my brother be like my compassion and love for myself regarding his property and his person, and everything that is in his possession or that he wants; and everything that I want for myself I should want for him likewise, and everything that I hate for myself or for one attached to me I should hate for him likewise. This is His exalted statement: ‘Love your neighbor as yourself.’

Some have already noted the relation between these formulations and Kant’s categorical imperative. Seemingly, the principle that appears here is the same principle that we found in Kant, formulated positively or negatively: not to do something that we would not want to become a universal law (or that we would not want done to us ourselves).

This similarity can be seen in another rabbinic source as well, namely the well-known dispute between Ben Azzai and Rabbi Akiva, cited in the Jerusalem Talmud Nedarim 9:4 and parallels. In Genesis Rabbah, chapter 24, it appears as follows:

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 neighbor as yourself’—this is a great principle in the Torah, so that you 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 this, know whom you are disgracing—for ‘He made him in the image of God.’

Various interpretations have been offered to explain this dispute, but we find an interesting explanation in the Ra’avad’s commentary on Sifra Kedoshim (and likewise in Matnot Kehunah on Genesis Rabbah), where he claims that the words ‘lest you say’ were spoken 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 see to it that they not be bad for my fellow. Ben Azzai responds with his own principle, which teaches us that even if things are bad for me, I am nevertheless commanded to see to it that my fellow have good and not evil—seemingly even more than I myself do.[11]

The Jewish neo-Kantian philosopher Hermann Cohen, in his book Religion of Reason out of the Sources of Judaism,[12] grounds this in the continuation of the verse brought by Ben Azzai: ‘He made him in the image of God.’ That is, universality is the basis of Ben Azzai’s approach.[13] If Rabbi Akiva sees the moral imperative as a result of obligation to the other, then Ben Azzai sees it as a result of the duty to resemble the Holy One, blessed be He (or perhaps of the fact that every person was created in the image of God).[14] Why does universality serve as an argument against the failure that emerges from Rabbi Akiva’s view? Does universality dictate that even if things are bad for me, I must nevertheless care for my fellow? How is that connected to universality? On the contrary, seemingly it is precisely the comparison made by Rabbi Akiva that leads more naturally toward equality among all human beings.

It seems that this can be explained through Kant’s categorical imperative. Universality means that one should not do to one’s fellow what one would not want done to oneself. That is, one’s obligation toward the other does not depend on one’s actual situation, but on what one would want one’s situation to be. Whatever seems good in one’s eyes, even if one oneself does not have it, one must see to it that one’s fellow has it. In other words: do not do to your fellow what you would not want for yourself (even if in fact such a thing has happened to you).

We can now understand the dispute between Rabbi Akiva and Ben Azzai. Rabbi Akiva too accepts the Kantian principle,[15] but in his view the obligation to care for one’s fellow depends on my actual condition. I am not required to see to it that my fellow have better than I do, only like me. Ben Azzai argues against him that the commandment is to do for one’s fellow what I think would be good for him (or for me), and not what I actually have. If so, there is clearly great similarity between Kant’s approach and that of the Sages.

Now, there are thinkers who nonetheless distinguished between these theories in terms of their sources (Hillel, Ben Azzai, and Rabbi Akiva derive this from the verse, whereas Kant derives his imperative a priori). There are also those who distinguished between the addressees of the command (Kant insists on the universality of the command, without any dependence on the person concerned, whereas Hillel speaks specifically of ‘your fellow’), and the like. Below I shall propose a completely different distinction between the contents of these imperatives (although both will find their place within Jewish law).

In contrast to the universalist-humanist thinkers we have just mentioned, it is difficult for a traditional learner to interpret these sources in a truly universal sense. After all, it is well known that our attitude toward Israel is supposed to differ from our attitude toward a gentile. And our tradition understands ‘your fellow’ as one who is your fellow in Torah and commandments, one who ‘acts with you.’

Even so, the discussion of Rabbi Akiva and Ben Azzai indicates that the categorical imperative is apparently present in our sources, except that it is not universal, as Kant and those who followed him saw it. It applies at least within the circle of the Jewish nation.

What is the significance of this imperative? Does it indeed express an a priori reasoning, as Kant saw it, or is it merely an implementation of the command ‘love your neighbor as yourself’? In what follows I shall argue that this imperative is far broader than the moral aspect, and in this way I shall detach it from the context of love of Israel within which it seemingly appears. It will then emerge that this is indeed an a priori reasoning, as Kant held.

C. Returning to the debate in Tzohar 30: the ‘categorical imperative’ in Jewish law

As noted, in the previous issue a debate was conducted between Rabbis Nehorai and Friedman concerning the order of priority in consumption during the Sabbatical year. Rabbi Nehorai cites Rabbi Friedman’s words, who writes:

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 worthy alternative. Nevertheless, produce of the sale permit will not be a source of supply for ‘Otzar Ha’aretz’… We do not wish to make the sale permit a banner that we must defend. We are at peace with our approach, which looks at the Sabbatical-year issue in a complex and comprehensive way, trying to find macro-solutions—for agriculture in the State of Israel and for the farmers…

And it should be emphasized: bringing produce of the sale permit into ‘Otzar Ha’aretz’ 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 Ha’aretz’ neither adds nor detracts in this matter…

One can understand from his words that in his opinion the permission is given to the farmers when necessary, but the instruction to consumers is to try not to consume fruits and vegetables from the sale permit.

To this Rabbi Nehorai objects (following Rabbi Weitman), arguing that the two must be linked:

I am astonished! The sale permit is trampled in the streets by significant sectors of the religious public, and who will defend me against the slanderers? Shall we leave support for the farmers to the secular public, which buys in the large chains whatever comes to hand?… Is that possible?! The farmer asks: who will eat my produce? And the rabbi’s answer (the rabbi who opposes consumption under the permit) will be: there is a population that is not so meticulous; it will buy your goods and therefore you will lose nothing.

Additional arguments appear in his words, but I shall focus on these passages alone, for they are the important ones for our purposes, and in my opinion they represent the foundations of the dispute.

At first glance it seems clear that Rabbi Friedman is right. Consumers of ‘Otzar Ha’aretz’ are not significant relative to the produce of the sale permit. Most of the consumption is by a public that buys this merchandise without even noticing, and therefore there is no reason to permit consumers to buy this produce if a better option is available to us (a court-administered produce arrangement, or import from abroad). Rabbi Friedman also adds in his response that of course he does not support imposing a prohibition on consuming produce of the sale permit, but what follows from the permission for the farmers is only a principled permission to consume and not necessarily a recommendation to do so. He brings as an example a Chabad custom, which he opposes for the same reason: to keep a small amount of actual leaven over Passover (contrary to the accepted halakhic recommendation that private individuals not sell actual leaven, because of concerns about the sale’s validity), in order to strengthen the validity of the sale of leaven.

Before I clarify what I see as the core of the dispute, and its connection to the previous sections, I shall address a similar situation that arises with respect to leaven that remained over Passover. All my life I was accustomed, after Passover, to enter a store that had sold its leaven properly, and not to buy the actual leaven that had been sold, but only produce that had been milled and baked after Passover. After years, a thought occurred to me: this practice is not reasonable. If the shopkeeper or the factory owner was permitted to sell actual leaven because of substantial loss,[16] then by the same token I too, as a consumer, am permitted to buy from him after Passover the goods that were sold in this way. It cannot be that the shopkeeper or factory owner was permitted, while the consumer was not permitted to buy from him. If consumers do not buy from him, what good did the permission do the business owner?

Now here too a claim like Rabbi Friedman’s can arise. Usually, most of the customers who enter the store, or who buy the factory’s products, are not meticulous about the law of leaven that remained over Passover, and therefore the question whether I buy from him or do not buy from him is irrelevant. He will lose nothing, even if I consume only produce that was milled and baked after Passover, in the strictest possible fashion. So why permit scrupulous consumers to buy from businesses that sold actual leaven? Seemingly one should prohibit it, for there is no need. Note well: the basis of the permission is the business owner’s substantial loss, and in situations where there is no concern of loss (because of consumption by a less meticulous population) there seems to be no reason to permit the meticulous to consume it.

Now 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 of loss (for factually the consumption of the scrupulous public is not significant), nevertheless in his opinion they too should be permitted, and even encouraged, to consume this produce. How can such a position be defended (and I too, humble as I am, support it)? Is a permission required in a place where there is no real need at all?

Several reasons appear in Rabbi Nehorai’s words, and I do not wish to elaborate on them here (and I think not all of them are aimed at one another). We shall focus here only on the principled claim presented in the passage above. It seems that the only way to understand such a claim is through a ‘categorical imperative,’ in Kant’s formulation. 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 the produce of the sale permit, or of the sale of actual leaven, even though that certainly solves the problem. The reason is that the state of affairs we would want to become a universal law is one in which everyone observes commandments, and consequently everyone is as meticulous as we are. In such a state of affairs it would certainly fall upon us to consume produce of the permit (or of the sale of leaven) in order to solve the problem of the farmers (or the business owners). Here it is already a universal law, and there is no one on whom we can rely to do the work for us. But in light of the line of thought of the categorical imperative, the conclusion is that even in a situation where there is a public that is not meticulous, we may not rely on its existence, and one should permit—and even recommend—that the meticulous public consume produce of the permit. That is because a different mode of conduct could not become a universal law, according to the outlook of Jewish law. Thus behind Rabbi Nehorai’s argument stands a meta-halakhic intuition that is very similar to Kant’s categorical imperative.

Rabbi Friedman, by contrast, apparently holds 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 the less meticulous), then there is no concern of loss, and therefore there is also no need to permit consumers to consume less exactingly kosher goods. Put differently: if the situation is not supposed to become a universal law—or at least so long as it is not such a law—we are under no obligation to act as though it were. In Rabbi Friedman’s opinion, only when a problem will actually arise (that is, when all Israel are stringent in Jewish law, or at least meticulous about observing it at the level of refusing to consume produce of the sale permit), only then will it be incumbent upon us to permit consumers to consume this produce, because otherwise we empty the permission for the farmers of its substance.

Thus both sides speak of a ‘general solution’ and of a ‘systemic perspective,’ but their conclusions diverge precisely at the point of the reasoning of the categorical imperative. These are two kinds of universalism, and this dispute recalls to some extent the interpretation we suggested above for the dispute between Rabbi Akiva and Ben Azzai, although this is not the place. To sharpen the matter, let us add that, in contrast to both these approaches, the Haredi approach comes and denies universalism altogether. There they refuse altogether to adopt a systemic approach of any kind. They seek only a solution for the individual, 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 the understanding of the categorical imperative in general, and with respect to its halakhic application in particular. We should notice that this application of the categorical imperative does not concern questions of morality, or of harming another. Usually, the applications of the categorical imperative all concern moral questions. Morally, it is forbidden to steal because we would not want theft to become a universal law (or, put differently and somewhat differently: we would not want others to steal from us)[18]. It is forbidden to murder or harm another, because we would not want that done to us, or at all in the world. These are formulations that justify moral principles dealing with refraining from harming another.

Here, however, the abstention of meticulous consumers from consuming produce of the sale permit does not harm anyone. The farmers will not lose (as Rabbi Friedman argues, correctly), since their produce will be bought by the secular public at large. The secular public will not lose, since in any event they will consume the same thing. And the meticulous consumers will not lose; on the contrary, they will gain produce that is halakhically more refined. So why nevertheless permit the meticulous to buy produce of the sale permit? As we explained, the reason is a priori; that is, it does not stem from any facts, consequences, or goals. Simply because we would not want this to become a universal law.

This is the Kantian principle in its pure form, except that there is a significant expansion here. It is not only a basis for moral obligations, but a super-principle, or a reasoning 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 noted, this reasoning has no clear halakhic source. The words of Rabbi Akiva and Ben Azzai dealt with the moral context, and their concern was an interpretation of the command ‘love your neighbor as yourself.’ But this meta-halakhic intuition does not require a source (provided, of course, that there is no contradictory source). This is an a priori reasoning, as Kant saw it too.

There is, however, room to see this differently as well. One can relate to this application of the categorical imperative as a principle that is itself a moral principle. According to this, the rule that requires us to act in a way that we would want to become a universal law is itself a moral command. Morality demands that we act consistently, and not build ourselves up on the existence of those who do not behave properly.

Admittedly, this is a moral principle that does not concern harming another or refraining from harming him. It is a moral command that concerns the person’s own conduct, even if he does not harm another person. This command instructs him to act consistently, and according to this suggestion that demand belongs to the moral sphere.

It is commonly thought that moral commands concern only relations between one person and another (as distinct from ‘mussar,’ in its Torah sense, from the Mussar 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 others. By way of example, acts of forbidden sexual relations or homosexual intercourse, at least in cases in which they are done with full consent, do not constitute harm to anyone. Yet there is considerable room to see in them conduct marked by moral defects. The reason is that this is not fitting for the divine image that is implanted in us.

And here, unexpectedly, we return again to the dispute between Rabbi Akiva and Ben Azzai. Above we brought an explanation of their dispute that ties it to the question whether morality stems from duty toward one’s fellow (this is Rabbi Akiva’s view), that is, a relation to people, or whether in its essence it stems from resemblance to 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, and perhaps in the opposite direction: moral duty stems from resemblance to the Holy One, and therefore it can also touch acts that do not harm anyone.

Simply put, according to Rabbi Akiva’s approach, if indeed he sees moral duty as a result of obligation toward another and not specifically of resemblance to the Holy One, then there is no room for such a conclusion. Duties toward another concern only harming him or not harming him, and not acts that 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 this deserves further analysis.

E. Another example: desecration of the Sabbath

A common halakhic rule is that where there is a need to desecrate the Sabbath, one should not prefer to have it done by a secular Jew. When a commandment comes to one’s hand, one should not let it sour; and the decisors have already written that it is a commandment to have such things done by great people, and not by women or minors or the ignorant. Some have gone so far as to rule this way even with respect to situations in which there is no direct justification for desecrating the Sabbath, such as cases in which soldiers are required to guard vacationers and hikers who do these things on the Sabbath in forbidden ways. Here too some decisors permit it on various grounds, and here too the question arises why not use soldiers who are not observant of Torah and commandments, and try to evade such tasks.

Some would attribute this to the fact that secular Jews too are commanded to observe the Sabbath, and therefore there is no gain in their taking the task upon themselves. However, in my article in Tzohar 27, I argued in favor of the view that a secular Jew (at least an apikores) is not legally a transgressor at all. According to that view at least, should one try to evade such tasks?

I think not. And the reason is once again the reasoning of the categorical imperative. Since I would not want evasion of the task—if it is indeed required—to become a universal law, I have no permission to evade it myself either, even where there are other solutions that are seemingly more halakhically elegant. Solutions that rely on the existence of people and behaviors that are delinquent 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 its senses. In its narrower moral sense, it stems, at least according to some opinions, from the verse ‘love your neighbor 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 in a specific context; its applicability is entirely general. Whoever accepts this mode of thought must apply it in every domain, moral or otherwise. The examples of desecrating the Sabbath or consuming produce of the sale permit or of the sale of leaven are good examples of the broader significance of this reasoning.

[1] According to their view, the words of the decisors who discussed prohibiting violation of authors’ rights in books by means of bans and enactments and the like (among them Rabbi Akiva Eger, the Hatam Sofer, the Maharsham, and others) still require clarification. See ibid., sec. 20, where Rabbi Wosner is cited as explaining that their intention was only to books in which there is no creative novelty. This is very strained in their wording, as explained there.

[2] He dealt with 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.’

[3] Karl Rosenkranz (one of the first to publish a complete edition of Kant’s writings) already said of Kantian ethics that everything he destroyed with the surgeon’s scalpel of the Critique of Pure Reason rose again to life and renewed life in the Critique of Practical Reason. The reference is to belief in the immortality of the soul, in the existence of the God of justice and goodness, and in religiosity in general.

[4] Admittedly, the categorical principle itself, and Kantian ethics in general, do in my opinion appear valid and correct. Only the proof 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 true claim. See, on this, the last paragraph of my response to Rabbi Yoel Bin-Nun’s article, Akdamot 11; but this is not the place.

[5] Already in the original formulation it is circular, and not for nothing; but this is not the place.

[6] Kant devotes considerable effort to showing that there is no coercion here, because this will is the highest, and perhaps the only, expression of human choice. In his eyes, freedom and liberty are a condition of moral demand and not opposed to it. This claim is reminiscent of Rabbi Kook’s approach, which sees the aspiration toward the good and the inclinations implanted in us as an expression of our freedom and not as systems that enslave us, in the spirit of ‘only the servant of God is free.’ We shall not deal here with this aspect of Kantian ethics.

[7] The very fact that the content of the moral command 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 one interpret ‘want’ in this context as meaning ‘choose’ (on the plane of values), for then the imperative is emptied of content and becomes a tautology (= an empty logical identity): the good is what seems good in your eyes. See also the preceding note on the circularity of the formulation.

[8] For example (and Kant himself gives this example), in a time of distress a person makes a promise to his fellow while intending from the outset not to fulfill it. Is that proper? Seemingly not: we would not want it to become a universal law 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 appropriate that this should be a universal law? Incidentally, I would note that in a certain formulation one can connect to the categorical imperative also the halakhic rule of making no distinctions, and even more the principle that things forbidden because of misleading appearance may not be done even in private. According to this suggestion, the meaning of the rule regarding misleading appearance is: do not do, even where it is seemingly justified, that which you would not want done in other circumstances. Of course, the same challenge we raised at the beginning of the note could arise with respect to this interpretation as well. There are many other criticisms of Kant’s theory, and a considerable portion of them concern various problems in its application.

[9] See Midrash Lekach Tov on the above verse, and the translations there, and much else.

[10] It is interesting that in various sources the order is reversed, and there is a dispute over which is the greater principle. In Sifra Kedoshim, chapter 2, 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. In Bereishit Rabbati (p. 57), by contrast, the version is reversed: Ben Azzai opens, and Rabbi Akiva responds that his principle is greater than that. What is interesting is that in both these versions the conclusion is that both Tannaim agree that both of these are great principles, and the dispute is only over which of them is greater.

[11] Theodor made the same observation in his edition of Genesis Rabbah. See also the collection of essays by H. J. Roth, Religion and Human Values, Magnes, Jerusalem 1973, pp. 95–97, and Urbach’s The Sages: Their Concepts and Beliefs, p. 526.

[12] Translated by Zvi Wislavsky, Bialik Institute, Jerusalem 1972, in the eighth gate and also at the beginning of the ninth gate.

[13] Roth also calls attention to Rabbi Akiva’s seemingly universalist dictum in Avot: ‘Beloved is man, for he was created in the image [of God]’ (Avot 3:14). Admittedly, the contradiction with the next mishnah, which speaks of ‘Beloved are Israel, who are called children of the Omnipresent,’ is well known, and this is not the place.

[14] These are two different formulations. The fact that every person was created in the image of God can itself be the basis for obligation toward the other, but I cannot elaborate on this here.

[15] In the note above we pointed out that the formulations of parallel midrashim imply that both principles are accepted by both Tannaim, and the dispute concerns only which of the principles is greater.

[16] I cannot refrain from noting here that in the case of business owners there generally ought to be no problem at all with the sale of leaven, for from their point of view the intent in the sale is certainly absolute. Unlike a private individual, who perhaps does not really want and does not seriously intend to sell his food, business owners certainly do want people to buy their merchandise. If so, it is not clear what concern there is at all with their sale of leaven. Perhaps the lack of intent is on the part of the buyer (the gentile), who does not take such a transaction seriously (since he knows that in the end he will not in practice take the goods), but this is not the place.

[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 nearly the whole dispute between them unnecessary). In any case, it seems that the approach of the categorical imperative underlies their dispute, consciously or unconsciously.

[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 will, this may itself be the difference we present below in this section.

[19] I will 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 therefore there will be no need to perform such tasks. But the existence of transgressors is certainly a fact that Jewish law takes into account. Only the directive to the person who acts should be determined 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 note that at first glance there would have been room to raise the argument presented in this section also on the basis of the halakhah that one desecrates the Sabbath through great adults and not through minors, and according to some views not through gentiles either (of course if we understand it as part of the core law and not as a special directive). But this is mistaken. Even in a state where Jewish law becomes a universal law, minors and gentiles will not be obligated in Sabbath observance. Therefore the categorical imperative does not concern these questions, but only the question whether one may make use of a person who is obligated yet transgresses and does not act in accordance with his obligation.

[20] Admittedly, even there its main expression is found in the formulations of the Sages and not in the verse itself. Why did the Sages choose to interpret the verse specifically in this way? It seems that this is further indication of the a priori and intuitive root of this reasoning, even in the familiar moral context of the categorical imperative.