Another Look at the Categorical Imperative in Halakha (Column 344)

The discussion with Rabbi Navat following Column 342 raised the question of whether to view Halakha as a categorical imperative and the performance of a mitzvah as an act done in response to that categorical imperative—or not. The background is the central thesis of Kantian ethics, according to which the character of the act itself does not determine its moral value; rather, the motivation is what determines it. Kant teaches that an act has moral value only if it is done out of respect for the imperative. There is an additional innovation of Kant: he also clarified the content of that categorical imperative. He held that this imperative requires us to conduct our actions in a way we would will to be a universal law. I have long wanted to discuss this imperative and, in particular, its halakhic applications. I have dealt here quite a bit in the past with the categorical imperative (see, for example, Column 122 and much more), so I will not elaborate beyond what is necessary for our discussion here.

The Categorical Imperative

Kant’s categorical imperative states that the criterion for a moral act is whether you would want it to be a universal law—that is, whether a world in which everyone behaves that way is a good world or not. I explained there that he does not mean to assert the factual claim that if you steal, others can do so as well and then it will be bad for all of us. His claim is that even if, in reality, no one besides you will steal, still, if hypothetically a world in which everyone steals is a world you would not want to live in, that indicates that theft is an immoral act.

In that column and in the article I devoted to the categorical imperative in Halakha, I brought a few examples of its applications. For instance, a person debates whether to evade income tax. He tells himself that if the state treasury lacks 1,000 NIS, this will have no effect whatsoever. It is a change in the tenth digit after the decimal point in the state budget, and nothing will be impacted (note: we are not speaking of a small effect but of zero effect; see Columns 252–3). If so, from a consequentialist perspective there is no problematic outcome to this act, and therefore, ostensibly, there is no impediment to doing it (“this one benefits and that one does not lose”). The common objection is: what will happen if everyone does as you do?! In that case the state treasury would indeed be significantly deficient, for there would be many damages. But that is easy to answer: I won’t tell anyone I am evading, and therefore my act will have no effect. Only I will evade taxes, and others will not evade because of me. Moreover, even if all the others evade taxes to a great extent, they do so for their own reasons, with or without me, and therefore my marginal contribution to the matter is negligible. Thus, there is still justification to evade taxes.

The only way to ground a prohibition of such an act is the categorical imperative: even if it will never happen in practice, you certainly agree that if hypothetically everyone evaded taxes, the situation would be bad. Therefore, your tax evasion is an immoral act. Note that the argument here is not consequentialist-teleological. The problem is not the bad consequences of your act (for there are none), but the failure to meet the criterion of the categorical imperative: you would not want this act to be a universal law, and that alone suffices to define your act as immoral.

The same holds for a person deliberating whether to vote in elections (because his vote has no effect—and again, not a small effect but zero effect with probability close to 1). Here too one can run the same discussion, and without the categorical imperative there is no consequentialist way to convince the person that he is obligated to vote. I will only recall that in Column 122 I showed that, surprisingly, the categorical imperative—although blatantly not a consequentialist criterion—is the only principle that can yield the desired results in such cases. Each person will make the calculation I described, and only thus is it possible that people will not each individually conclude that there is no reason not to evade taxes or to refrain from voting.

Halakhic Implications

As noted, I devoted an article to the status of the categorical imperative in Halakha. I argued there that it has the status of sevara (reason), and as such it has halakhic force. This has not a few practical halakhic implications, and I think this principle aptly describes widespread halakhic intuitions, even though people are usually unaware of it (see in that article an example regarding the heter mekhirah in the sabbatical year, and more below).

The principal halakhic implication of the categorical imperative is a broad meta-halakhic principle that states that an act that cannot become a universal law cannot be halakhically binding. It is important to understand that I do not mean the principle of a decree that did not spread among the public, according to which if a given decree does not spread it does not acquire force. In such a case the decree could be a universal law (even if difficult), but in practice it does not spread. In such situations, there may be merit in one who nevertheless chooses to act accordingly. I am speaking of situations in which, by definition, this mode of conduct cannot be a universal law—that is, my observance of the law necessarily entails that others do not observe it (without which I myself could not act thus). In such a case, I argue, Halakha does not obligate (and perhaps even forbids) acting in that manner. In any event, in such situations there is no virtue in being stringent; on the contrary, one is acting improperly. Moreover, I will show below that this concerns not only special hiddurim (stringencies) but also laws that are of the essence. If they cannot be a universal law, they are void.

An Initial Example

I recall that in my youth I heard of many God-fearing people who were careful not to use the eruv on Shabbat, and therefore when going out for a stroll with their family, they would have the wife push the stroller with the baby and also take it down to the street. The supervisor at the “Netivot Olam” yeshiva was furious at this policy and said that a person must not be righteous at his wife’s expense. I do not recall whether he meant that he is foisting work on his wife, who is not supposed to labor for his piety, or that he is transferring the “transgression” of carrying on Shabbat to his wife. I entirely disagree with the first argument, for if the wife agrees then her work is credited to her as part of the reward for the husband’s service of God (just like women who work so that their husbands can study Torah). In any case, here I wish to touch on the second rationale.

That second rationale effectively presupposes the categorical imperative, for it is based on the assumption that in a world where everyone refrains from relying on the eruv, life would be unlivable. The fact is that even this meticulous man allows his wife to take the stroller during the stroll and does not give it up. Therefore, one should not observe hiddurim when he himself is not willing for that to be a universal law (that everyone, including his wife, should act thus). The problem is not the burden on his wife but that this stringency is not viable as a universal law (not necessarily with respect to his wife).

Seemingly, many hiddurim are like this. Does that mean that a person is forbidden to be more meticulous than the minimum, just because others are not? Clearly not. My claim is different: a person is forbidden to be more meticulous than others if his very ability to be meticulous depends on others not being meticulous. A simple hiddur that one practices for himself even if others do not may well be praiseworthy.

Now the question arises: what do we say in a place where there is no eruv at all? Here we are not dealing with meticulousness or hiddur but with avoiding an actual prohibition. Should we also say there that a person must push the stroller in a karmelit without an eruv or even in a public domain, simply because there is no other way to live? Below I will argue that even that rationale is not outlandish, but for now I will only say that this is a hasty conclusion. The question is to what extent going out with a baby stroller on Shabbat is a vital necessity. One can forgo strolls, even if it is difficult, in order to avoid violating Shabbat. But if indeed life cannot be conducted thus (obviously I do not mean cases of mortal danger; see below), then there is room for this sevara. Yet in a place where there is an eruv, even the meticulousness and hiddur are not critical, for there are opinions that permit it. Therefore, here there is room for such a consideration even if the alternative price is not high (refraining from strolls).

We can formulate it thus: suppose there is an eruv and your wife is also meticulous not to use it. Would you nonetheless go out to the street with the stroller and rely on the eruv (because strolling on Shabbat with the baby is, in your view, a vital need), or would you refrain entirely? Let us compare the two cases:

Case A: If in such a situation you would go out to the street, this means that the hiddur is not important enough to you, or that the price of not going out is very high in your eyes.

Case B: In such a situation you would not go out at all. That means the hiddur is important to you and the price of refraining from going out is not so high for the sake of that hiddur.

This distinction has two sides. The simple intuition is that precisely in the first case there is room to permit giving the stroller to his wife, because in their eyes this is not such a severe prohibition, and therefore the harm to the wife is justified. On the other hand, from the perspective of the categorical imperative the intuition is the opposite: precisely in the first case it is evident that not going out to the street is not an option for them. In other words, refraining from relying on the eruv gravely harms what they regard as normal life. In such a situation, the husband himself does not want this to be universal law, and therefore he himself is permitted to go out with the stroller—or, more precisely, he is forbidden to be stringent and forbid it to himself while handing it to his wife. The reasoning is that if the prohibition were directed at everyone, he could not live (that is, he himself would not keep it), and therefore there is no prohibition here. By contrast, in the second case the option not to go out exists (they still deem this within the bounds of reasonable life), and precisely because of that the cost of not going out is not catastrophic. One cannot say that refraining from taking out the stroller fundamentally disrupts their lives, and therefore he may give the carrying to his wife, for there is no categorical imperative. In Kant’s hypothetical test, he would be willing for this prohibition to be a universal law. One can further debate this, but here I only wanted to illustrate the categorical imperative’s consideration in Halakha.

Note that this case is not so novel, for there are decisors who allow relying on the eruv. One who does not rely on it is only adopting extra meticulousness and a hiddur. The argument here is only that the categorical imperative requires a person not to be stringent where he is not willing for that to be a universal law. The question is whether the categorical imperative can be used to nullify an outright prohibition (and not merely to forbid meticulousness or a hiddur). My claim is yes, and I will now bring several examples.

Letting an Atheist Jew Commit Transgressions in My Place

Among soldiers in the army, the common halakhic guidance is not to assign tasks that involve a prohibition (such as Shabbat desecration) to secular Jews. On the face of it, this is puzzling; after all, they desecrate Shabbat anyway, so why shouldn’t I spare myself the desecration? Some bring in here the question of whether Shabbat is “permitted” or “deferred” for pikuach nefesh (saving life): if Shabbat is permitted in the face of mortal danger, there is no prohibition in the act and therefore no need to give it to a non-Jew or a secular Jew; if Shabbat is only deferred, then there is a prohibition and it is preferable to assign it to a secular Jew. But as I have said more than once, to my mind this conceptual distinction has not even one practical ramification. If you think again, you will see that even here there is no necessity to hang this on that question. Suppose Shabbat is entirely permitted in the face of mortal danger—this applies only where it is truly necessary for saving life. But if there is another, easier way, there is no reason to permit it. No one says that if a patient stands before us, one may drive on Shabbat to mix pork with idolatrous wine on the beach. And if it is necessary to save life, then even if Shabbat is only deferred in the face of mortal danger, there is no reason not to defer it here too. Despite all this, I do agree with that halakhic guidance, but my rationale is the categorical imperative.

In the responsum here on the site the question arose whether, according to my view that an atheist is not subject to mitzvot and transgressions, it is permitted to let him commit transgressions in my stead. I answered that if the act needs to be done (such as essential military or police activity), then there is no virtue in giving it to an atheist, and this is because of the categorical imperative. In a world where everyone kept Shabbat, we would not be able to give it to another Jew in our stead, and therefore even in today’s reality it is not right to do so. This is an act that cannot be, and that we would not want to be, a universal law; therefore it is improper.

Of course, the situation regarding instructing a non-Jew is entirely different, for there is no problem that there be non-Jews for whom the universal law permits Shabbat desecration; therefore, even in that hypothetical test there is no problem in telling a non-Jew to act in our stead. One may think he would prefer not to rely on a non-Jew or wonder what we would do if there were no non-Jews around (so we will bring them!), but those are other considerations, whether correct or not. From the perspective of the categorical imperative, instructing a non-Jew is unproblematic, while instructing a Jew (even one who is not practically capable of transgression) is problematic.

We must recall that when I say an atheist is not subject to mitzvot and transgressions, I do not mean that he is like a non-Jew. He is certainly obligated in mitzvot; my claim is that he lacks the ability to fulfill them or to transgress them. There were quite a few debates on this (in Tzohar and elsewhere) following my aforementioned article, and this misunderstanding recurred again and again. Every Jew is obligated in mitzvot and forbidden in transgressions. Moreover, there is an obligation on each of us to try to “return him to the strength of Torah” (in Maimonides’ phrase), so that he will fulfill those obligations. My claim does not address his obligation but only his practical ability to fulfill that obligation.

It may be that this also underlies the decisors’ instruction, repeated again and again, that Shabbat desecration for pikuach nefesh should be performed by adults of stature (not by women and not by minors). Beyond the consideration of saving life (so that they will not hesitate and thereby create danger to the sick), there is also here the rationale of the categorical imperative. In the ideal world, women and minors too are not supposed to do such things, so even in a non-ideal world I must not be “strict” and hand it to them. As for instructing a non-Jew to do what is needed in my stead, the categorical-imperative consideration does not apply, though of course there are the considerations of hesitation and danger.

Is the Categorical Imperative a Moral Principle?

In passing, I will note regarding the classification of the categorical imperative as a moral principle. Kant presented it as a moral principle, but in our context (and in Halakha generally) it is hard to speak of an ethical problem. Desecrating Shabbat is not contrary to morality but to Halakha. Letting another desecrate Shabbat is a halakhic problem, not an ethical one (certainly if he consents). But I argue that the categorical imperative is a sevara that does not deal only with acts that belong to the specifically moral category. It is a general rationale concerning how one ought to behave. In that sense, the categorical imperative can also address acts not linked to ethics. Whether in these contexts it is a moral command or a halakhic rule is an interesting (and perhaps merely semantic) question, but I will not deal with it here.

Connection to the Previous Example: Hiddur vs. Obligation

At any rate, it would seem from this that the categorical imperative is a meta-halakhic consideration that dictates and shapes the halakhic ruling itself, not merely avoidance of hiddurim. But even that is not precise. In these discussions we are speaking of actions needed to save life, and in principle saving life justifies Shabbat desecration. Thus the novelty of the categorical imperative in these contexts is not so far-reaching. It only says not to pass these permitted acts off to others. In a sense, this is again a case of extra meticulousness and hiddur rather than of the essence of the law. One who wishes to be stringent and not desecrate Shabbat even in cases of pikuach nefesh—the question is whether to pass the act to others or not.

The example I dealt with in that article, the use of the heter mekhirah in the sabbatical year (as well as buying full-fledged chametz that was sold over Pesach, after Pesach), is a case of this type as well. There we are speaking of decisors who fundamentally rely on the permit, but prefer not to use it. My argument there was that their meticulousness depends on others not being meticulous. If everyone were meticulous, then the farmers who used the permit would be unable to sell their produce, and the entire permit would be nullified and emptied of content (its purpose was to enable them to earn a living). Therefore, there is no justification for that meticulousness even if not everyone practices it. In fact, in my view in such a case there is no permission to be meticulous.

If so, in both types of examples cited thus far we are speaking of actions that are fundamentally permitted to be done (selling fields or chametz in a pressing situation is like Shabbat desecration for pikuach nefesh), and the only question is the degree of meticulousness. Forbidding meticulousness in such cases by virtue of the categorical imperative is not so radical, for it does not demand of you to commit an actual transgression. The stronger question is whether there is room to use the categorical imperative also where outright prohibitions are nullified, and not only with respect to meticulousness or broad applications of pikuach nefesh permits. I claim the answer is affirmative, and that is the subject of the next examples (which I discussed in detail in a series on the periphery of Halakha; I touched on the categorical imperative mainly in the eighth lecture).

Public Considerations

In my article on the obligation of an individual in a public role, I argued that a person who holds an essential public post is obligated to take risks to his life even for aims that are not pikuach nefesh. Regarding judges, this is explicit in several decisors, and there I extended it to anyone holding public office. I claimed that if the justice system or the police do not function, society cannot function. Therefore, if the policeman does not respond to a call to quiet noise on Shabbat night, ultimately Shabbat will become a free-for-all in which each abuses his fellow with none to reprove, and we will be unable to live here. Very quickly society will disintegrate, and people will leave for other places. Note: this is not about the usual sense of pikuach nefesh. For the sake of the argument, I assume no one will lose his life in such a situation; yet society will disintegrate. My claim is that since one cannot live if such a prohibition is kept in such a case, the act cannot be forbidden. Therefore, someone serving in the police cannot keep Shabbat in a situation where he is called to quiet noise on Shabbat, even though simple Halakha requires it, because he himself would not want that to be a universal law.

Note that today religious people almost do not go to serve in the police so as not to desecrate Shabbat in prosaic tasks (that are not tied to saving life). I contend that implicitly they allow this to themselves because they assume there will be others who will pull the chestnuts out of the fire for them. I am quite sure that if there were no secular Jews or non-Jews to serve in the police, a full halakhic permission—agreed upon by all decisors—would arise to serve in the police even for such roles, i.e., to travel for missions of quieting noise on Shabbat. Today it is convenient for all of us to forbid service in the police (since it forces us to desecrate Shabbat in cases that are not life-saving), because we are not forced to face the situation that such a policy would create (for others serve there and solve the problem). But if we had to face such a situation, in my estimation all decisors would permit it.

It is important to note that in such a case, in my estimation, those decisors would not have a lexicon that allows them to ground this permission. Decisors do not like and are not familiar with philosophical formulations, or with general principles imported from outside, and thus it is clear to me they would cloak the permission in vague pikuach nefesh considerations (“who knows if the noise on Shabbat night will not lead to riots that create mortal danger”), or wrap themselves in the hidden “opinion of the Torah” without explaining at all. But the clear halakhic foundation for permission in such situations is the categorical imperative. The sevara on which they would rely (even if, of course, they were unaware) would be the categorical imperative: we cannot allow ourselves to have this be the universal law. In my formulation above: our meticulousness regarding the laws of Shabbat rests on others not being meticulous (it cannot be a universal law), and therefore it has no place. This is the phenomenon of esoteric rationales that is quite common in halakhic rulings.

In those lectures I mentioned additional examples, such as operating the state’s foreign service on Shabbat (a common example whose source is a paper by Yeshayahu Leibowitz, who likewise did not know how to ground it and link it to the categorical imperative).[1] A modern state cannot allow itself a situation in which there is one day a week when the state is closed—i.e., officials from another country (or Israeli citizens abroad who encountered a problem) cannot reach anyone to solve urgent issues that arise. I am not an expert in international relations, but I assume that a modern state cannot exist in such a fashion. Even if I am wrong, let us assume for the sake of the argument that this is indeed the situation, for my topic here is the categorical imperative and not operating the foreign ministry on Shabbat. Is it not clear that permission is needed in such a case? Note again, I do not mean cases of saving lives, where the permission is simple. I mean situations that arise and require resolution, but they do not involve mortal danger. I am quite sure that here too, if there were no non-Jews and secular Jews pulling the chestnuts from the fire for us, the decisors would permit this easily (dialing with the left foot and speaking through the nose “with a change”). I am quite sure that here too they would not know how to ground it, and would again hang it on remote pikuach nefesh considerations. But in my view in this case as well, the permission is grounded in the categorical imperative. The alternative is that the state will not function—and that is not an option.

Note that here we are no longer speaking of a hiddur. According to ordinary halakhic principles, there is no justification to desecrate Shabbat when there is no life-saving. Even so, I claim that since the alternative is that we cannot live here, I cannot allow this to be the universal law, and from there I permit a full halakhic prohibition. This is no longer extra meticulousness or a hiddur but permission to do something forbidden by law due to the categorical imperative. Admittedly, even for those who now disagree, I would like to see what they would say if such a situation actually arose in which there are no “foreigners” to tend our flock. As I said, for myself it is clear what the position of the vast majority of decisors would be in such a case. It is worthwhile to see a survey of the various views, and the inability to anchor and ground such permission, in the article by Sapir and Aronofsky. The entire article is a hymn of “praise” to the helplessness of Halakha and of decisors and to the lacuna in halakhic thought when addressing such situations. See, for example, at the end of the article (p. 245), where they lament that decisors offer guidance to the individual who serves in the police—and even that is found only among a minority—but no one addresses how the system itself should act; and this is precisely my point. The categorical imperative, as I presented it here, fills that lacuna; as it is said: “Wisdom among the nations—believe; Torah among the nations—believe even more.”[2]

The Prohibition of Secular Courts and the Courts of Israel[3]

Another example related to public considerations is the permission to resort to the secular judicial system in the State of Israel and elsewhere. There is an ongoing dispute on this, with nearly all decisors across the spectrum claiming that this involves the prohibition of “arka’ot” (secular courts), and some religious judges and jurists contending otherwise (that what was forbidden applies only to systems of non-Jews or idolaters; the permission of courts in Syria; the rule of “they accepted upon themselves” and other arguments). Eliav Shochetman, as is his way, treats the issue more systematically (in several of his articles), distinguishing among different domains of law.

Without delving too deeply into the details and arguments, it seems to me as clear as day that the decisors are correct—that is, the prohibition applies fully also to the courts of the State of Israel. This is a foreign legal system (and not a contingent case of “they accepted upon themselves”), and there is no similarity to the courts in Syria, for there the issue was that there were no worthy rabbinic judges, and therefore there was no alternative to appointing unworthy judges (laymen in every sense). In the State of Israel, however, there are worthy judges; I do not see how one can learn from there a permission for us. The arguments of the “defense” in this matter seem to me untenable. Seemingly, the obvious conclusion is that indeed this is a grave prohibition and one should not give it any support whatsoever—and that is indeed the common halakhic discourse.

And yet, from time to time a rabbi issues a declaration not to include in a quorum those who take part in the world of law (religious attorneys or judges) and other such matters, and then everyone cries out that he is benighted, fanatical, intolerant, etc.—but it is hard to understand why. Seemingly, he is merely drawing a conclusion from halakhic doctrine. From another angle, one of the most intriguing phenomena in this matter is the entry of Haredim into the world of higher education and work, focused mainly on—believe it or not—law studies. And that is noteworthy! The permission for Haredim to leave the kollel and the Haredi hothouse and to go out to studies and work is precisely in a field that, in their own rhetoric, entails grave Torah prohibitions bordering on idolatry, collaboration with a foreign and alien legal system and people who persecute the sancta of Israel, etc., etc. Precisely there?! What is wrong with construction work? Well, that is hard work and not profitable. And what about engineering, sciences, accounting, and the like? Not to mention medicine, which is a great mitzvah of saving life (true, there is the price that one must occasionally also save the life of a non-Jew, heaven forbid). Well, this too is quite simple: those fields are too difficult and require background that graduates of the Haredi system do not possess.

Law is very easy (certainly for one trained in yeshiva-style dialectics) and requires no prior background, and therefore it is an excellent and obvious candidate for easy, comfortable income for graduates of Haredi education. And what of the prohibition? May all those who “plant an Asherah by the altar” and raise idolatry there be included in a minyan? It is true that Haredi society is very pragmatic, and when necessary it always finds the way to permit what needs to be permitted,[4] and yet there ought to be some logic here, if only for appearances. Is this the hidden “opinion of the Torah” that we small ones cannot comprehend? Not for nothing is there thunderous silence of the Haredi leadership regarding this phenomenon, and yet I have not heard them speak against it either. Silence and a wink.

How can one reconcile the superlatives that have been said—from the Sages until today—about the severity of the prohibition of “secular courts,” with the unbearable ease of violating it even among pious and wholesome people? What explains these intriguing and self-contradictory phenomena? I have yet to mention the phenomenon of resorting to the “secular courts” by Haredi institutions and figures par excellence. And I am not speaking only of situations where there is no choice because the dispute is with a secular person (although even there there is room to discuss), but of litigation between Haredi people and groups, including great rabbis (such as the dispute in Ponovezh and many more). Is it permitted to engage in idolatry in order to head the Ponovezh yeshiva, or to receive a decent salary?

In my article on Modern Orthodoxy I argued that the debate about resorting to courts is conducted on the wrong field: the decisors argue that it is a grave prohibition—and they are absolutely right. The judges argue against them that there is no choice because this is not workable in the State of Israel (see below)—and they too are absolutely right. So what do we do? Those (the decisors) keep silent and wink, and those (the jurists) contrive tenuous and unconvincing halakhic excuses. In my opinion, here too, as above, the focus of the problem is a lacuna in the halakhic language. It lacks the conceptual framework to handle such situations. I argue that here too, as we saw above, there is permission derived from the categorical imperative, but people are unwilling to recognize this or are unaware of it.

The reasoning is as follows. Let us think of a hypothetical world in which everyone is meticulous not to resort to the courts but only to private rabbinic tribunals. Beyond the fact that Torah law cannot today cope with modern reality, the authority to subpoena witnesses and evidence does not exist in private tribunals. In such a situation legal anarchy would prevail, and the justice system would not be effective. A person could do as he pleases and not comply with a system that has no teeth and no enforcement tools. In other words: the fact that I, as a punctilious halakhic person, can be stringent upon myself and boycott the justice system stems from there being “Gentiles” (=secular Jews and less punctilious religious Jews) who pull the chestnuts out of the fire for me. That is, if the private tribunal obligates me and I do not pay, there is an enforcement system that will back it—police and bailiff’s office (which, of course, it is forbidden to resort to) and the courts (which, again, one may not resort to). If my opposing party refuses to adjudicate in Torah law, there is always the legal system (which it is forbidden to resort to) that will back me.

If so, my “stringency” not to resort to the courts in the State of Israel rests on not everyone doing so. If everyone did, there would be no judiciary, and the rabbinic tribunals would also lose their significance.[5] Society would remain without an effective justice system. Go and see the anarchy in Haredi society, which tries to be meticulous and not resort to the state’s law enforcement—police and courts (one who resorts to them is an informer and violates the prohibition of arka’ot). Thus arise private “police” that employ unregulated violence, people are judged without a right of appeal, there is no oversight of the tribunal, one can refuse to appear and conduct endless wrangling over the composition and venue of the tribunal, etc., etc. No wonder that even there they do not truly keep to this. If so, the categorical imperative says that even individuals who wish to be stringent upon themselves are forbidden to do so. This cannot be a universal law, and therefore it is improper conduct even for individuals who can bear it. It seems to me that even if unconsciously, this consideration underlies the winks and turning of a blind eye by decisors to the phenomenon of resorting to the courts and of studying law. Again: there is a halakhic lacuna, i.e., unfamiliarity with the philosophical conceptualization that in fact stands in the background, and above all an unwillingness to acknowledge it.

One could argue that in an ideal society (the society in which the hypothetical universal law of Kant’s test prevails) there will be no secular Jews, and therefore there is no problem if everyone there refrains from resorting to the courts (and indeed the legal system itself will be religious). But this argument takes the situation too far. In the current circumstances I would not want that prohibition to be the universal law, and that suffices to determine that such conduct is improper. Otherwise, one could go further and argue that in an ideal system there are no criminals and everyone keeps agreements and reaches understandings on their own, and therefore there is no need for any justice system. But that would truly be an unreasonable naïveté. There are always criminals, and one always needs a system to deal with them; and when we speak of universal law, we mean a law in a world of flesh-and-blood human beings like ours.

A Note on Modern Orthodoxy

Incidentally, in my article on Modern Orthodoxy and in that lecture series I explained that this kind of consideration characterizes—or ought to characterize—Modern Orthodoxy, which is an independent category (as opposed to religious Zionism or Haredism). Haredism is characterized both by halakhic conservatism and by opposition to Zionism. The contrary view regarding Zionism defines religious Zionism, whereas the contrary view regarding halakhic conservatism defines Modern Orthodoxy. For some reason, in our context these terms overlap—but they should not. Hardal (Haredi-national) circles, for instance, are Haredi in the halakhic sense but not Haredi in their attitude to the state and Zionism. Likewise there are Haredi shades that are open to the world and its culture and oppose Zionism (R. Samson Raphael Hirsch and the Breuer community, for example), and they are not entirely Haredi either.

If we examine matters on the halakhic plane, I think that considerations like the categorical imperative characterize Modern Orthodoxy, for halakhic conservatives will not be willing to accept them. Regarding the Zionist outlook, there is room to discuss, for a Zionist view usually relates favorably to the needs of the state and the public, and therefore it may be inclined to accept such considerations. But the halakhic conservatism that accompanies it in the hardal world will likely not allow this (cf. Rabbi Neria’s polemic above with Leibowitz). I think that the combination of Modern Orthodoxy with Zionism (though there is no a priori necessity for these two to go together, of course) is the group that ought to adopt these considerations most fully and absolutely.

In closing, I would like to discuss a few additional topics adjacent to the categorical imperative.

Further Examples: “The Congregation Shall Save” and Extra-Legal Punishment

The Mishnah in Makkot 7a brings a dispute of Tannaim regarding capital punishment:

Rabbi Tarfon and Rabbi Akiva say: If we had been in the Sanhedrin, no person would ever have been executed. Rabban Shimon ben Gamliel says: They, too, increase bloodshed in Israel.

And the Gemara there further explains:

How would Rabbi Yohanan and Rabbi Elazar act? Both said: If you saw [the victim] as a treifah killed, [you can always argue] he was killed whole; Rav Ashi said: If you say he was whole, perhaps in the place of the sword there had been a perforation… Regarding adulterers—how would Abaye and Rava act? Both said: If you saw it like a stylus in a tube… And how did the Rabbis judge? Like Shmuel, who said: In adultery cases—from the time they are seen as adulterers [i.e., based on circumstantial evidence sufficient for halakhic certainty].

R. Akiva and R. Tarfon would effectively acquit every murderer and adulterer by invoking evidentiary doubts. One who stabs his fellow with a sword can always claim that the victim would have died even without him because there had already been a hole there. And similarly with an adulterer: we generally do not see the act itself but rely on circumstantial evidence (thus in Kiddushin we say: “The witnesses of seclusion are the witnesses of intercourse”). We must remember that these are capital cases, which require absolute proof with no doubt. Any consideration, however remote, should serve the court to save the accused from death (derived from the verse “the congregation shall save”). Seemingly, R. Akiva and R. Tarfon argue a correct halakhic point, for we never and cannot ever have certainty. But Rabban Gamliel answers that a policy such as theirs increases bloodshed in Israel.

In the background, we must remember that R. Akiva (who was of converts) and R. Tarfon did not serve on the Sanhedrin. It seems they raised rationales during their study in the beit midrash, where everything is examined through internal halakhic logic. In that context there is room for considerations such as they present here. But Rabban Gamliel was the Nasi of the Sanhedrin, and as such he bore social responsibility to prevent bloodshed. He argues that in principle and theoretically they are correct, but this cannot be the general policy of courts. We should note that, by this account, the specific defendant in question is indeed not liable to death by law (because it suffices that there is some doubt), yet Rabban Gamliel decides nonetheless to execute him because this cannot be a universal policy. A world in which the policy of R. Akiva and R. Tarfon is the universal law would be a dysfunctional world in which every murderer goes free.[6] This is a correct consideration for the particular case but cannot be universal law. The implication is that Rabban Gamliel allows himself, on that basis, to execute someone who is not liable to death. Such an act is certainly bound up with a grave prohibition; nevertheless, the categorical imperative justifies it.

I think we can broaden this to the general authority of “extra-legal” punishment entrusted to rabbinic courts (in principle even in our time; see Shulchan Aruch, Choshen Mishpat 2 and its commentaries). It seems this, too, reflects a similar mode of thinking. Every extra-legal punishment entails a prohibition (injury or killing), for you are harming a person who is not liable to such punishment by law. Even so, the categorical-imperative consideration justifies transgressing the prohibition when the hour requires it. Incidentally, I do not know of a source for this authority. It seems that the rationale for this principle is from sevara, and the obvious candidate is the categorical imperative: we would not want to live in a society where people are punished only “by the book” (cf. “Jerusalem was destroyed only because they judged according to Torah law”—Bava Metzia 30b).[7] Admittedly, there is some difference from the categorical imperative here, for in this case there is a real fear that the social situation will worsen, whereas with the categorical imperative I explained above that there is no real fear but a hypothetical test (what would happen if this were the universal law). On the other hand, in Column 122 I showed that even with the categorical imperative, in the final analysis we are preventing future harms.

Returning a Lost Item by Signs

A similar consideration appears in the sugya of returning lost property by (identifying) signs. There is a dispute whether returning based on signs is biblical or rabbinic. According to the view that signs are only rabbinic (i.e., biblically one would require witnesses to return the item, and signs do not suffice), the Gemara struggles: how can the Sages permit returning the item to one who, by law, has not proven it his? Seemingly, this entails theft from the true owner (Bava Metzia 27b):

Rava said: If you say that signs are not biblical, how do we return lost property by signs? Because it is agreeable to a finder of a lost item that we return by signs, so that when he loses [something], they will likewise return it to him by signs. Rav Safra said to Rava: Does a person do a favor for himself with money that is not his? Rather, it is agreeable to the owner of the lost item to give signs and take it, for he knows he has no witnesses, and he says: Not everyone knows its distinctive signs, and I will give distinctive signs and take it.

To explain this, the Gemara offers a rationale that is apparently akin to the categorical imperative. It explains that although there is now a concern of theft, we would not want the requirement of witnesses to be the universal law for returning lost property. If that were the case, a person without witnesses would be unable to receive his property. In a situation without witnesses in favor of the owner, he himself prefers to take the risk that a fraudster may come and take his item by deceit, since in that case only maybe he will not get his property back. By contrast, if we adopt the alternative—requiring witnesses—then he will certainly not get it (for he has no witnesses). Therefore, the Gemara says that the owner waives his right and agrees to allow returning by signs.

Here it is a consideration made by a private individual, not by the Sages. Moreover, the individual himself waives his rights. In monetary matters, this is possible (since money can be waived), and thus there is no real need here for the categorical imperative. But I think the logic behind this principle is similar.

On Socrates and the Son of Shimon ben Shetach

The story of Socrates’ trial is well known. As he sat in prison awaiting death (for no wrongdoing, due to his views), his students came and proposed that he flee. Socrates refused, and in Greek literature three different rationales remain. One appears in Plato’s dialogue Crito, where Socrates explains that this would violate the contract every citizen has with the society to which he belongs. The fear in the background is undermining society’s institutions if people do not respect those agreements (i.e., the law).[8]

In the Talmud there is a similar story about the son of Shimon the Righteous (who lived some three hundred years after Socrates, in the time of Alexander Jannaeus).[9] The Bavli, Sanhedrin 44b, brings the following story:

Our Rabbis taught: It once happened that a certain man went out to be executed. He said: If I bear this sin—let my death not atone for all my sins; and if I do not bear this sin—let my death atone for all my sins; and let the court and all Israel be acquitted, and let the witnesses never be forgiven. When the Sages heard this they said: To bring him back is impossible, for the decree has already been decreed. Rather: let him be executed, and let the collar be hung around the witnesses’ necks. — Obvious! Is that in their power? — It was necessary where the witnesses retracted. — And what of it if they retracted? Once he has testified, he cannot retract! — It was necessary where they gave a reason for their words (as in the case that requires concealment).

The case is of a man going out to be executed who claimed his innocence. The witnesses recanted at the last moment (and even gave a pretext to explain the falsehood of their first testimony), and the Sages nevertheless did not void the sentence, because by law a witness cannot retract his testimony (“once he has testified, he does not retract”). The Sages decided to execute him, and the “collar” would hang on the witnesses’ necks. There are several interpretive problems here, for if the witnesses gave a pretext, they seemingly can retract. Moreover, if the court is convinced that the defendant is not liable to death, it should at least recuse itself, even if not acquit entirely.

Rashi there recounts that the condemned man was the son of Shimon ben Shetach, and the false testimony was the result of Shimon ben Shetach’s famed execution of eighty witches (see also in the Yerushalmi, Hagigah ch. 2, etc.). The case appears as well in the Yerushalmi, Sanhedrin 6:3, and in the Tosefta, Sanhedrin 9, etc., and in some sources it is not explicit that the witnesses recanted (see, e.g., the Tosefta there), which makes it easier to understand. In that case we have suspicion of an erroneous verdict, not certainty. Still, there was room to void the verdict due to a “deceitful case.”

Thus far we saw that the Sages decided that by law they cannot void the punishment because of the rule “he does not retract.” By contrast, in the Yerushalmi, Sanhedrin 6:3, it is stated that the court wanted to retract, but Shimon ben Shetach’s son himself requested that the erroneous sentence be carried out:

Shimon ben Shetach’s hands were hot. A group of scoffers came and said: Let us give counsel—let us testify against his son so he will be killed. They testified against him and his verdict was reached to be executed. When he went out to be executed they said to him: We are lying! His father sought to bring him back. He said to him: Father, if you seek salvation to come by your hand—make me as a threshold.

This is a case of clear “Socratic” character, in which the condemned man himself requests the execution and prevents his own rescue. Why does he do this? It seems his goal is the salvation of the regime of Halakha (precisely parallel to what I brought from Crito). After Shimon ben Shetach executed eighty witches, he wants to show there is no favoritism in the law, and his act was a sort of salvation. The son is willing to sacrifice himself for this end. The conclusion is that by the letter of the law they really should not have executed him, and the execution was beyond the strict law.[10]

It is interesting to note that in Bavli, Makkot 5b, it is stated that Yehuda ben Tabbai, the colleague of Shimon ben Shetach (see Avot 1:8; Yerushalmi, Hagigah ch. 2, etc.), executed a single false witness (who had been rendered false alone) just to refute the Sadducees who held that a false witness is executed only if the sentence was carried out. Shimon ben Shetach said to him that he had spilled innocent blood, since by law the witnesses are not punished until both are rendered false. He accepted upon himself to judge only before Shimon ben Shetach so that he would supervise him not to err. Here too, it seems, someone not liable to death by law was executed for side reasons (to dispel the Sadducees’ view). However, note that here we are dealing with a witness who was rendered false, and therefore his execution is not entirely unjustified. Had there been another witness with him, he would certainly have been liable to death. Moreover, here by all accounts there is no novelty in the credibility of the second pair (as in Sanhedrin 27a it explicitly states that there is no novelty in rendering a single witness false). If so, the punishment was due him, and it is not carried out only because of a scriptural decree. And yet they killed here a person who, in the halakhic plane, was exempt from death.

Note that unlike what we saw above regarding extra-legal punishment, here the public consideration is made by the accused, not by the court. He is willing to die, though it is not due him, out of a general public consideration. This is almost precisely the categorical imperative, for Kant’s principle addresses the individual rather than the organs of government. The private person, when weighing steps, is to make the public consideration. Admittedly, it should be noted that the consideration made by Shimon ben Shetach’s son is not quite the categorical imperative. If we test what would be the case if his step were universal law, we would get that the universal law would say that one who is not guilty is not executed. We are not dealing here with a universal law that acquits true criminals. So too with Socrates: there as well there is no problem with a universal law that exempts the innocent from death. In these cases, it is a step of stringency due to a future concern and a public consideration, but not necessarily because of the specific logic of the categorical imperative.[11]

In conclusion, it is difficult to extract from the sources a clear articulation of the categorical imperative in its pure form, but I think the sources brought here suffice to persuade that this principle is very reasonable and intuitive; therefore, despite its novelty, it has a place in halakhic ruling—“why do I need a verse? It is logic!”

[1] In the article by Aronofsky and Sapir, cited below, the well-known polemic with Rabbi Neria on this matter is presented. The entire debate beautifully expresses the lacuna that prevents the halakhic language from conducting it at all.

[2] In my article on the categorical imperative I referred to traditional sources, such as Rabbi Akiva’s principle “what is hateful to you” and his dispute with Ben Petura regarding the canteen of water. Perhaps this is also the meaning of the principle “a time to act for the Lord.” It seems to me that it is difficult to extract the categorical imperative clearly from these sources. Such an interpretation is possible, but only after Kant conceptualized this sevara, and only after we, as interpreters and decisors, are willing to acknowledge it and employ it in Halakha even if we lack a verse or Talmudic exegesis that states it.

[3] See on this my article on Modern Orthodoxy.

[4] Keep this rule in mind: what fails to find a permission is only due to interest and fear for the Haredi ethos—nothing to do with Halakha or the substance of the issues. So it is with smartphones, computers, the internet, television, secular newspapers, and the like.

[5] This is not like abroad, for there it is permitted for non-Jews to establish and resort to such a system; therefore, there one can rely on the non-Jewish legal backing also from the perspective of the categorical imperative.

[6] We should discuss here why not adopt the consideration of R. Akiva and R. Tarfon and, to prevent widespread bloodshed, punish him by incarceration in a cell (kippa)—extra-legal punishment (see below).

[7] In the past I proposed that the source for extra-legal punishment is in the “law of the king,” which, after the monarchy ceased, was channeled to the rabbinic courts. See Column 164.

[8] Some have wondered at this rationale because of Socrates’ alienation from the Athenian regime (democracy), but in my view this is no difficulty. He indeed disliked and even opposed the regime, but that is the regime now, and as a citizen he sees himself obligated to respect it and not violate its laws. The idea of law-abidingness finds clear expression precisely where I disagree with the law. One must, however, discuss a case where my opposition is to the form of legislation and the institutions that enact it rather than to a specific law. In such a case, it is not certain that I am party to a covenant that obligates me to obey.

[9] See discussion of this in my article on the “scriptural decree.”

[10] Note that some connect Shimon ben Shetach’s saying in Avot (1:9) to this case:

“Shimon ben Shetach says: Be very probing with the witnesses and be cautious with your words, lest from them they learn to lie.”

[11] One can raise similar questions even with clear categorical-imperative considerations. For instance, Kant prohibits lying even in cases of pikuach nefesh, because I would not want there to be a universal law permitting lying. But one can of course argue that I certainly agree to a universal law that permits lying in cases of mortal danger. The questions of when a law is considered “universal” and which situations it addresses are difficult. Likewise, one could argue that here there is fear that there will be a universal law not to carry out the sentence of a competent court, and therefore Shimon ben Shetach’s son had to give himself over to death. I will not enter those questions here.