Halakhic Thought – 5783 – Lesson 8

Table of Contents

• Political opening and a remark about voting
• Jewish law and morality as independent, and the question of universality
• Cannibalism, moral disagreement, and moral sense versus command
• The Torah’s desire that we be moral without a detailed command
• The Maharal in Be’er HaGolah: a lost object, despair, and civil morality versus Torah
• “Intellect” versus “reasoning” in the Maharal, and the metaphysical explanation of ownership
• Rejecting the claim that Jewish law is built on moral considerations
• Weighing morality and Jewish law, the “will of God,” and a semantic dispute over the term “Jewish law”
• Conclusion: scheduling a meeting, attendance, and names

Summary

General overview

The text presents a lecture in which the Rabbi argues that Jewish law and morality are two independent categories: Jewish law is aimed at religious goals, not moral ones, and morality is universal, so there is no such thing as “Jewish morality,” only morality that obligates all human beings. The lecture examines possible clashes between the two systems, argues that even a divine command does not eliminate disagreements because of the problem of interpretation, and brings a source from the Maharal to show the lack of overlap between the considerations of “civil morality” and Torah law. In the end, a distinction is made between Jewish law and the “will of God” as a balancing of religious and moral values, and the talk concludes with technical matters of scheduling a meeting and attendance.

Political opening and a remark about voting

The speakers argue over whether one should say “Tet” or “Tibi,” and identify “Tet” with the Haredim (ultra-Orthodox). The speaker says there is no difference between slips within the same bloc, and that when it comes down to it they all vote against, giving the struggle over Gush Katif as an example.

Jewish law and morality as independent, and the question of universality

The Rabbi presents his view that the correct approach to the tension between Jewish law and morality is that the categories are independent. The Rabbi classifies laws as “moral,” “anti-moral,” and “a-moral,” and argues that all of them are aimed at achieving religious goals, not moral ones. The Rabbi concludes that morality is universal by definition, and therefore there is no such thing as “Jewish morality,” whereas the specifically “Jewish” thing is Jewish law.

Cannibalism, moral disagreement, and moral sense versus command

A student raises an anthropological example of cultures in which cannibalism is seen as an elevated and good act. The Rabbi replies that in his view there is not necessarily anything wrong with that, and that he does not see what is immoral about eating human flesh. He distinguishes between actual disagreement over principles and the claim that if a principle is moral, then it obligates all human beings, and anyone who does not act accordingly is mistaken. The Rabbi rejects the assumption that religion actually provides a divine source that settles moral principles, and argues that in morality there is a “moral sense,” whereas in Jewish law there is no inner intuition, so an external source is needed. The Rabbi argues that there are more disagreements in Jewish law than in morality, and that moral disagreements are “at the margins,” illustrating that even “Do not murder” requires interpretation, so even an apparently clear command does not eliminate disagreement.

The Torah’s desire that we be moral without a detailed command

The Rabbi says there is trust that the Holy One, blessed be He, commanded commandments that have benefit even though he does not know what that benefit is, and he emphasizes that if he did know, there would be no need for a command. The Rabbi argues that the Torah expresses a desire that we be moral, but there is no command that spells out what counts as moral, and he cites “And you shall do what is right and good” as a general statement that is not included in the count of the commandments and is not a detailed command.

The Maharal in Be’er HaGolah: a lost object, despair, and civil morality versus Torah

The Rabbi brings the Maharal in Be’er HaGolah, second well, chapter 6, by way of the topic of returning a lost object after the owner has despaired of recovering it. The Rabbi presents a tension in which “civil morality” requires returning a lost object even after despair, whereas Jewish law exempts one from doing so. He adds that the Sages themselves say that the opinion of the Sages is pleased with one who returns it even after despair, and that in the Shulchan Arukh an opinion is brought that one may even be compelled to return it. The Rabbi brings from the Maharal that the reverse also exists: a case in which “civil morality” is lenient and Jewish law is stringent, such as finding silver or gold vessels with an identifying mark, where the owners have not despaired, in which case Jewish law requires that it “remain until Elijah comes,” even if it was announced and people waited many years.

“Intellect” versus “reasoning” in the Maharal, and the metaphysical explanation of ownership

The Rabbi explains the Maharal’s language that words of Torah are “measured by the intellect” and that “the Torah is entirely intellectual, and the Torah does not turn to reasoning,” and he explains that “intellect” for the Maharal means abstract theoretical truth, whereas “reasoning” means sensible conduct based on improving the world and benefiting people. The Rabbi emphasizes that Jewish law can depart from considerations of human benefit because it rests on calculations about the bond between a person and his property, and he cites the Maharal’s explanation that despair removes property from the owner’s mind and turns it into ownerless property, whereas when the vessel is in the owner’s possession or awareness it remains his property. The Rabbi emphasizes that this is not a moral consideration but another system, and that it explains how Jewish law can be lenient or stringent contrary to moral intuition.

Rejecting the claim that Jewish law is built on moral considerations

The Rabbi rejects the claim that laws are built on moral considerations even when there is overlap, and argues that correspondence does not prove that the moral consideration is the halakhic / of Jewish law basis. The Rabbi presents the position that there are interpretive reasonings even in non-moral areas, and emphasizes that the existence of many exceptions in which Jewish law does not overlap with morality proves that the moral consideration is external to Jewish law. He states that if one assumes Jewish law exists only to achieve moral goals, one cannot explain deviations from morality, whereas assuming other goals explains why there is no reason for Jewish law to be “troubled” by the moral goal.

Weighing morality and Jewish law, the “will of God,” and a semantic dispute over the term “Jewish law”

The Rabbi says that the Torah and the Holy One, blessed be He, expect both moral behavior and halakhic / of Jewish law behavior, but these are “two different wills” and two independent categories. He says that in practice one has to weigh the moral value and the religious value, and that the religious value will not always override the moral one. The Rabbi argues that a decision when the two clash cannot be made “within” Jewish law or “within” morality, and therefore belongs to the category of the “will of God” as a balancing between them. He defines the debate over whether to call that bottom-line conclusion “Jewish law” as a semantic dispute. The Rabbi gives an analogy of chocolate: considering health leads to one conclusion, and considering taste leads to another, and in the end a practical decision still has to be made even though both aspects remain true.

Conclusion: scheduling a meeting, attendance, and names

At the end of the lecture, the question comes up of when “we’re sitting down,” and Sunday afternoon is agreed on, and afterward Tuesday morning. The Rabbi finishes taking attendance and checks names such as Elad, Boaz, Omer, Arben Davidovitz, and Noam Lev, and corrects records about attendance at earlier meetings. The conversation ends by coordinating the possibility of meeting “after prayer” and checking availability.

Okay, we’re starting. Wait a second, Rabbi — Tet or Tibi? Did I say I was voting for Ahmad Tibi before the… before the… Tet? I didn’t say Haredim, I said Tet. Tet is Haredim. What’s the difference? I told you, it’s the same thing. Voting for that whole bloc is the same thing. There’s no difference, no matter which slip you put in the ballot box. At the decisive moment, at the decisive moment, it doesn’t matter what you offer them, they’ll vote against it. Okay. What, look at the struggle over Gush Katif. All right, let’s begin. We have… we don’t have much time left, so let’s do at least the two sources I wanted to get through today, and do it quickly.

Okay, last time I spoke about the question of Jewish law and morality, and I said that in my opinion the right approach to this tension is really to speak in terms of independence. That Jewish law is a category independent of morality, and vice versa. Two independent categories, including all types of laws — the laws we might call moral, anti-moral, and amoral. Okay? All three of those types of laws, in my view, are aiming to achieve religious goals and not moral goals. Right? That was basically my claim.

And I said that as a result, the conclusion that comes out is that morality, by definition, is universal. There is no such thing as Jewish morality. There is morality, and all human beings are obligated by it. If it is immoral to murder, then all human beings are forbidden to murder. If it is immoral to steal, or if one ought to help others, then all human beings are expected not to steal and to help others. Moral matters are things that by definition are universal. There is nothing specifically Jewish about morality; there is no such thing as Jewish morality. What is Jewish is Jewish law. Okay? And therefore this categorical distinction is a very important distinction.

I want to show you two sources that say, in one way or another, what I’ve been saying here. I’ll start with Be’er HaGolah. But there are moral commandments — there are moral commandments. No, in my opinion there aren’t.

Rabbi, in the previous class — I don’t know, in anthropology we were actually reading about cannibalism. I’m curious what you would say about that. There are hundreds of cultures in the Americas where cannibalism is deeply rooted in their culture as a supreme act, as a good act. So what does that mean? From their perspective it really shows completely different moral standards. From their point of view it’s good; from their point of view human flesh is the highest thing you can do, you’re honoring the person.

First of all, in my opinion there is actually nothing wrong with it. What’s wrong with eating human flesh? What’s immoral about it? I don’t understand what’s immoral about it. We’re used to honoring the dead, burying him, and so on. I don’t see anything horrific about it. It seems repulsive to us on the human level, but is there a moral violation here? I don’t see any moral problem with it. That’s one thing.

And second, I never said that all human beings agree on the same moral principles. What I said is that if there is some moral principle, then it binds all human beings. If there is someone who doesn’t act in accordance with it, then he is mistaken. But I’m not willing to say that if he’s a gentile then his morality is supposed to be different. Not that it’s different in practice. I’m not talking about an empirical descriptive question. I’m not saying that all human beings agree on what one should or shouldn’t do. What I’m claiming is that if I’ve reached a certain moral conclusion, then as far as I’m concerned it obligates all human beings. If someone reaches a different conclusion, then I have an argument with him. Obviously, there can be disagreements.

But there’s another implication to that. Meaning, I agree with what you said as a moral principle, but what about the search for that principle? What is that? Meaning, how do I know what the moral principle is?

That’s a different question. So there are disagreements about how I know — think about it…

So what’s the advantage of religion? Seemingly, it ought to come and say yes, there is some divine source that comes and says, folks, the principles are A, B, C. That’s why you should study them.

I’ll tell you two things about that. First, maybe it ought to be that way. The question is whether it is that way, not whether it ought to be. And I claim that it isn’t. In actual fact it isn’t. I can show that — I did show that this is not the case. I didn’t merely claim it; I showed it. That’s one thing.

And second, I’m not even sure that it’s true. Because unlike Jewish law, in Jewish law you don’t have some internal intuition that tells you what is right and what is not right. There has to be something external that tells you — the Torah — that gives it to you, tells you: this is the law, this is required, this is permitted, this is forbidden. In the moral context, we have a moral sense. Now, the fact that there are disagreements — there are disagreements in Jewish law too. If Jewish law wrote something, then there wouldn’t be disagreements? Are there no disagreements in Jewish law itself? There are more disagreements there than in morality. In morality there are fewer disagreements than in Jewish law. In morality you find disagreements at the margins, in fairly esoteric issues. In Jewish law there are disagreements at the core. So you wouldn’t solve that even if there were a command about moral principles; the disagreements would still remain. So that wouldn’t help.

That’s why I say that all these things don’t touch the fundamental discussion. If we received what is called instruction from above, cut and dried, of a moral principle over which there are no disagreements, then that wouldn’t help? Of course it would help. There’s a clear principle that murder is forbidden, right? Do you know how many arguments there are about the prohibition of murder? No, it says in the Torah that murder is forbidden. Is murder permitted? I’m asking whether murder is forbidden, right? It says, “You shall not murder.” You don’t need an extended school day to understand that.

Wait, exactly — now the argument is about what is included in “You shall not murder.” Which means that even when the Torah says something that seems very, very clear, in the end it is always a question of interpretation. You can’t escape that. There’s no way. Interpretation is obvious. Everything a person reads… Exactly. Therefore the naive conception you expressed earlier — that the Torah will say something and then there won’t be disagreements and everything will be clear — doesn’t help at all. It sets up some kind of skeleton. Without that part, you could also be a cannibal. You could do whatever you want because there is no criterion for anything.

So I’m saying that in Jewish law it puts down the skeleton. There definitely is, there definitely is. There are more disagreements there than in morality. What do you mean by disagreements? Those are principles people fight over. But then what happened is arguments over the tip of a letter. Not the tip of a letter. In Jewish law there are arguments about the essence. What are you talking about? In morality the arguments are over the tip of a letter. In Jewish law the arguments are over the essence. There are arguments about how many categories of labor there are on the Sabbath. Come on. In morality there are arguments over the tip of a letter.

Why? That’s the tip of a letter. That’s the tip of a letter? So what isn’t the tip of a letter? The skeleton itself. The very fact that labor is forbidden on the Sabbath — that’s the skeleton. What? You’re deciding what is skeleton and what isn’t. In my opinion — thank you very much — in my opinion the arguments about morality are much more marginal than the arguments in Jewish law. In morality the arguments are at the margins, really at the margins. Most things are completely agreed upon. On the contrary, much more so than in Jewish law. Therefore the command wouldn’t help at all.

But they have a moral skeleton. Never mind, we’re returning to that. We kept the commandments — that’s not the second question. The Holy One, blessed be He, commanded them, and I assume they also come to achieve certain goals. What goals? Not moral goals; I called them religious goals. What religious goals? Religious goals — I don’t know, maybe to repair eternity in the world. I don’t know. Something. The Holy One, blessed be He, knows what this is meant to achieve. I trust Him, and therefore I assume that if He commanded it, then apparently there is some benefit in it. I don’t know what that benefit is. If I knew, I wouldn’t need the command.

It’s like morality. In morality, when I understand the point, then you really don’t need a command, because people more or less understand — there are arguments, of course, as in everything — but broadly speaking we understand. Therefore you need the moral command less there. There is “And you shall do what is right and good,” a kind of general statement like that. But there is no specification of what “right and good” means. More than that: even that general statement is not included in the count of the commandments. We spoke about that. No one who counts the commandments counts “And you shall do what is right and good.” It’s not a command. It is an expression of the Torah’s will. That the Torah wants us to be moral — certainly, that is obvious. There is no command that tells us what counts as being moral. The commands deal with Jewish law.

Now look at two sources. One of them is the Maharal in Be’er HaGolah, Second Well, chapter 6. Do you see it? Yes. Chapter 2 in tractate Bava Metzia. They say there that one need not return a lost object after the owner has despaired. Example: there’s a lost object, the owner has given up hope. What do you say — does it need to be returned or not? What does your morality say? In the end you say yes, right? Huh? Yes. Morality says certainly yes, right? Why? But so that he won’t use it… The person was the owner; he despaired because he thought they wouldn’t find it. But because of that, you’ll take it for yourself? Why? Why does it belong to you? What does that have to do with anything? Give it back to him. We’re talking about a case where we know who the loser is. Not just giving it to someone at random; we know it was his. But after despair, I can take it for myself.

Now how do I know that this is immoral even according to the Sages? Because the Sages themselves say that the opinion of the sages is pleased with one who returns a lost object even after despair, even though one is not obligated according to Jewish law. In the Shulchan Arukh an opinion is already brought that they compel this — to return a lost object after despair — even though according to Jewish law, after despair you may take the lost object. Okay? So here there is some gap or very frontal tension between the moral command and the halakhic command.

So look at the Maharal. “They said there that one need not return a lost object after the owner’s despair, and this seems very far-fetched to people: that a person should take what is not his, and he did not labor or toil for it, and should covet another’s money. This is not according to civil law” — meaning according to morality — “for civil law obligates returning the lost object even after the owner has despaired of the lost object.” The fact that he didn’t think it would be found and despaired — now it has been found, very good, so now return it to him. Right? Elementary.

“And the reason is that civil law obligates something that is fitting to do for the sake of repairing the world, even though reason does not obligate that thing; rather, that is simply what repairs the world. Therefore civil law is sometimes stringent in a matter, even though according to reason and straight justice there would be no need to do so. And sometimes civil law is very lenient.” Here civil law, morality, is stricter than Jewish law. It tells you to return the lost object even after despair, while Jewish law says no, right? But there are also opposite situations. There are situations where morality is lenient and Jewish law is stringent. Here’s an example.

“Therefore civil law is sometimes stringent in a matter, even though according to reason and straight justice there would be no need to do so. And sometimes civil law is very lenient when that matter need not be done for the sake of repairing the world, even though it is not fitting according to reason.” “Reason” here means Jewish law; I’ll come back to that in a moment. “Only according to civil law. Therefore according to civil law one must return the lost object after the owner’s despair, and this is a stringency.” Right? That is morality’s stringency vis-à-vis Jewish law.

“And likewise the reverse.” Now look at a leniency of morality compared to Jewish law. “If one found silver vessels and gold vessels…” “And likewise the reverse. If one found silver vessels and gold vessels and announced it once and twice, and no person claimed the lost object for a year or two, then he keeps it for himself and uses that vessel. For there is no repair of the world in this, after he announced it several times and waited a year or two or more — he will not come anymore.”

I found silver vessels, gold vessels, very expensive, with a clear identifying mark. There is no despair on the part of the loser. I announced once, twice, three times. He’s not coming. I waited three years, five years — he’s not coming. What does Jewish law say? “Let it lie until Elijah comes.” You are forbidden to take it for yourself and use it. It has an identifying mark and the owner did not despair; you have to keep it until your grandchildren and great-grandchildren. That’s it, you can never take it. What does civil law — meaning morality — say? Come on, why should nobody benefit from it? That person is not coming anyway, right? He’s not coming, so at least you benefit. What, who loses from that? Meaning, here Jewish law is stricter than morality. In the previous example Jewish law was more lenient than morality. These two examples show that Jewish law and morality are not overlapping categories. Sometimes one is stricter and sometimes the other is stricter, and there is a difference between them.

That’s what he says: “And this is not according to the Torah,” because Jewish law does not agree with this. “For if one found silver vessels or gold vessels and announced it many times, they remain forbidden to him forever; rather, let them lie until Elijah comes. He should never touch them.” So you see that they were very stringent.

There was some question here.

But where does that come from? You could say it like Rabbi Kook, no? What? That apparently we didn’t understand the Jewish law, or we didn’t understand morality according to Rabbi Kook. Okay, now explain to me why. Declarations are easy to make — they’re free.

Just a question about how you determine that there’s no despair over gold vessels. It just doesn’t seem right to me.

No, once it came into your hand before despair, then even if despair came afterward, too bad. Because your obligation to return it arises at the moment you pick it up. That’s the Jewish law. Okay? At the moment of picking it up? Yes. If at the moment of picking it up the owner had not despaired, then it came into your possession and you are obligated to return it to him even if afterward he despairs while it’s with you. The despair has to be before the pickup. That is the law. Leave aside for the moment why. But that’s the accepted law according to all opinions. There is no dispute about that. Okay?

And all this — I continue reading the next paragraph — “And all this is according to the words of the Sages according to the Torah, for all the words of the Torah are measured by reason. And when something is fitting according to reason, so it is fitting to do. As the Torah said, ‘Observe and do them, for this is your wisdom and understanding,’ and so on. And it is not civil law. For civil law leaves matters according to conjecture and according to thought, whereas the Torah is entirely rational, and the Torah does not turn to conjecture.”

Now this is very difficult. What does it mean that if it’s rational then it’s not conjecture? What? Why isn’t reason conjecture? Excellent question. So I’ll explain his terminology. By “reason,” what he means is truth — abstract theoretical truth. “Conjecture” means logical conduct among human beings: what will bring maximum benefit — that’s what he calls conjecture. What he calls “reason” is what is correct in terms of theoretical truth, regardless of whether it improves the human condition or worsens the human condition. He assumes that there is something called some sort of metaphysical truth — I don’t know what — what is right to do, regardless of whether people end up better off or worse off as a result. And he says there is no overlap between those two categories.

Civil law, what he calls morality, goes with conjecture. You understand that it makes much more sense for me to use it; why should I keep it forever for someone who is never going to come? It’s very logical in terms of human interests. He says yes, but the truth, in terms of pure halakhic truth, is that if you took it after despair — never mind why at the moment — but if you took it before despair, you can’t take it for yourself. In terms of human relations — logic, justice, order, whatever you want — it says otherwise. Meaning, that’s his formulation of the distinction I made earlier between morality and Jewish law. Jewish law reflects some objective truth — that’s his claim. Again, I’m not entering at the moment into the question of why this is the objective truth, but first of all you can see the difference: that this truth is different from what morality says. Right? That you can see.

Rabbi, but even in practice, halakhah comes from a root meaning “walking,” meaning how one acts. What I know is that Jewish law specifically takes abstract truth, whatever it may be, and implements it in practical life.

Right, implements it in practical life. But implementation doesn’t necessarily have to achieve the best condition for human beings. That is already the assumption that Jewish law comes to implement morality. No, Jewish law needs to be implemented in practical life — and what does that mean? Returning a lost object, returning a lost object even if the person… if they’re silver and gold vessels that I picked up and he hadn’t yet despaired, to keep it for years — in practical life, not in theory — that is implementation in practical life.

But why is that the right implementation?

It’s the right implementation because that is the halakhic truth, not because of morality and justice and people. That’s exactly the point. You’re asking me why the halakhic truth is like that; at the moment I don’t know how to explain it to you. Fine? We can talk about that, but at the moment I don’t know how to explain it to you. I’m only pointing out — and this you can’t deny — that the fact is, Jewish law says something that is sometimes more stringent and sometimes more lenient, but it is not identical to the moral consideration. Right? You can see that.

But that’s exactly morality.

Okay, and regarding what he was talking about: the concept wasn’t all that common in the period of the Talmud, that when you see a lost object you have to return it. Morality here says that if there’s a lost object and the person hasn’t despaired of it, you have to try and return it to him. Once it’s despair or no despair, we’ve gone into details. The fact that you have another person’s lost object and it’s your duty to return it to him — that’s a morality you don’t find among the other nations.

Leave the other nations aside for the moment; I’m talking about a different question. Leave aside the nations of the world; they’re not relevant here. Since I’m talking about the question of what morality says and what Jewish law says. The question whether the nations of the world observe morality or not is another question. But that’s not interesting; that’s a practical question. I’m talking about what people are obligated to do, not what they do in practice. And we too don’t always do in practice what we’re obligated to do. So I’m talking about the question of what morality obligates and what Jewish law obligates, not what people do. Okay? And the Maharal’s claim is that there is no overlap between the two, neither for leniency nor for stringency.

But there are many laws that were built also on, also based on logical reasoning and moral considerations.

Again — no, no, no, I disagree. I disagree. Laws are not built on moral considerations, even though sometimes there is overlap between them. And I explained last time that even when there is overlap, that doesn’t mean the halakhic consideration was at bottom a moral consideration. Maybe there is convergence, but you can’t ignore it. Why? You can ignore it completely. The convergence may be accidental, may be otherwise, but these are two different things. I explained that even if there is convergence — that’s what I called “the moral laws” — it does not mean the law came to achieve the moral value. It only means that in this case there is convergence between the religious value and the moral value. Sometimes there is, sometimes there isn’t; it could even be accidental.

But I don’t see how you can get rid of that. In the end, Jewish law is a product that was built; we didn’t just receive it.

A product built according to halakhic reasoning, not moral reasoning. That’s exactly the point.

Both.

No, no. I answered that — that was the previous class. No, I claim not. Only and exclusively. No, Jewish law as such is not actually one single thing. It’s how we act in many, many different areas — property acquisition, family life, this and that, relationships between people. And about all of them I claim that it has nothing to do with morality.

But Jewish law itself isn’t some absolutely homogeneous uniform thing.

I don’t care. In all those areas, in all those subjects, it has nothing to do with morality. That’s my claim.

But if Jewish law includes so many other considerations, then why wouldn’t the consideration…?

Not other considerations — other areas. No.

But if other areas…?

The halakhic considerations are considerations whose purpose is to achieve religious goals in many areas. Moral goals are other goals. And the Torah wants both this and that. But this is morality and that is Jewish law, and those are two independent categories. I spoke about that last time. Two independent categories — that’s exactly the point. I don’t care that Jewish law is diverse and deals with many areas — so what? Morality also deals with all kinds of areas. But morality and Jewish law are still two categories, period.

You could say that Jewish law also takes the moral consideration into account; sometimes it doesn’t rule according to that consideration because of other considerations.

That’s words. Why? It’s not just words at all.

It’s completely words, because you can never give me a practical difference coming out of that, since every time Jewish law departs from morality you’ll say, ah, here the religious value overrode the moral value; and if it fits, then what are you really saying? That the religious value just happens in this case to overlap with the moral value. No problem, that’s perfectly fine.

No, so you — so I say, in such a place, then you will act according to the moral consideration because it will override the religious consideration. But not that the religious consideration was determined by the moral advantage. Rather, Jewish law itself already takes the moral consideration into account.

We’re back to the previous class. In the previous class I explained — it’s simply not logical — because you see so many deviations where it is completely clear that the moral consideration is entirely external to Jewish law. It cannot be that Jewish law exempts a person who kills in such a case. We talked about that in the previous class.

Why? Is there some kind of what? Morality — morality isn’t troubled by the murder here? The murder is exactly the same murder as when she murdered in that other way.

It could be that I would actually also change the Jewish law.

But leave changing it aside — wait. I’m asking what Jewish law says. Leave me alone with what will change. When it changes we’ll talk; right now I’m asking why it says otherwise. Why does it say otherwise now? Why didn’t the Sages think of this morality? What considerations? Which? Which? Which? Tell me which. According to morality there is no consideration here at all. Considerations of ownership, of damages, of areas…

Do you realize that you’re just saying words and not standing behind any of them? You can’t give me one such consideration. You’re giving me words. Explain to me why murdering in this way is exempt. Explain it. One explanation. You said a lot of explanations, right? Give me one. One that actually holds water, but specifically for this. Not economic words… give me an explanation. You’re giving me words and putting them under the heading “the halakhic consideration.”

No, because in the halakhic consideration…

So give me — according to Jewish law, what is the logic?

I’m telling you that in the halakhic… and that is exactly the point: in the halakhic consideration I cannot tell you the logic. There are religious goals that I do not understand, for the sake of which the Torah came.

And the people themselves enacted this law, not for the Torah. This is some human morality that changed.

And again we return to what we discussed last time. In the previous class I explained that there are forms of reasoning that are relevant in that domain too, and I showed that these things operate by reasoning even though it has nothing to do with morality. There is reasoning. I talked about Brisk — how they reason in sacrificial law and purity law. There is interpretive reasoning even in non-moral areas. There is. But we’re returning to the previous class.

So let’s focus for a moment on the Maharal. What he is basically saying is that there is a gap between what morality says and what Jewish law says. And then he says, “For all this is according to the words of the Sages according to the Torah,” and so on, “the Torah is rational,” and so on — we read all that. Then he says this:

“For any lost object” — wait, sorry — “and because a person’s money is not his very essence, not of himself and flesh of his flesh, but only his property, which belongs to the person, therefore when the money is lost from him, such that the money is no longer in his possession — for every lost object leaves his possession — then the money itself is not in his possession and his mind is not on it either, since he despaired and removed the money from his heart. Therefore this thing is no longer his money at all, for it is not in his possession and not in his mind, and it is complete ownerlessness. Therefore, when he despairs of the thing and removes the money from his mind, it is no longer his money.”

Now, you can agree with his explanation, you can disagree with his explanation, but the facts say — the facts say — that the halakhic consideration does not overlap with the moral consideration, no matter how you explain the halakhic consideration.

Which is itself a form of reasoning.

But that reasoning itself is not moral reasoning. What does it have to do with morality? Does morality say that if it’s no longer in my mind then it’s no longer mine? Is that morality? It has nothing to do with morality. Morality says that if it’s mine, give it to me. It’s mine, not yours.

It’s a logical argument that when a person despairs of something…

There, now you’re saying what I answered before. There is logical reasoning even outside the moral domain. That’s how Jewish law is built. I’m not against that. But I’m saying it can’t be that Jewish law is only that, and that it doesn’t take moral considerations into account in domains that are also rational.

Again, we return to the previous class. Jewish law does not take that into account, because if it did take it into account, these laws would not exist. They do exist. There are places where you have no reasoning on the moral plane, no reasoning opposed to the moral reasoning — none — and nevertheless Jewish law does not overlap with morality. That means that Jewish law has another system. And from that I inferred that even in places where Jewish law matches morality, the simple logic is that there too the match is accidental. But again, we discussed all this last time.

And that’s what he says: “Therefore he said that if one put a vessel in his house and thought it lost and despaired in his heart for many years, and someone then found that vessel, it does not belong to the finder. Because the vessel is in the owner’s possession and does not leave his possession. And similarly, if it left his possession because it was lost, but he did not remove it from his mind because he did not despair, then it is still his property and his money is still considered his.”

Do you understand? This is some kind of calculation that has nothing to do with human benefit, but rather with the question of what the metaphysical bond is between a person and his property. If he forgot about it, then the money is no longer his. If it is still in his awareness, then the money is still his. But these are metaphysical words; it has nothing to do with morality. Morality is the question: what difference does it make to me that the money is his? He is never going to see it, because he doesn’t know that I found it. Right? He isn’t coming to me. So why should I care now that metaphysically this money belongs to him? It turns out that I do care. A consideration of that kind is a consideration that Jewish law takes into account. And therefore it can depart from the rules that morality gives us. That is basically his claim.

“Therefore what they said, that one who found a find and afterward the owners despaired, it is his — this is according to reason, when one understands the nature of money, that it is only property. Therefore the owner’s name must be attached to it, and thereby it is his property — either because it is in his mind or because it is in his possession, but not when it has left both his possession and his mind.”

All these calculations could be continued; I don’t want to go on because we’re already out of time. But the Maharal’s claim, regardless for the moment of how persuaded you are by his rational, true explanations, the fact is — leave the explanations aside, find another explanation — the fact is that there is a substantive lack of overlap between Jewish law and morality, both for leniency and for stringency.

And if you think Jewish law came to achieve moral goals, because you are unwilling to accept the existence of other goals, you won’t be able to explain this. There is no explanation. Now if you say there are other goals, then there is already no reason to assume that Jewish law is preoccupied with moral goals. Why? Because in places where there is no visible reason to move away from the moral goal, and nevertheless Jewish law departs from it — then why assume it is at all concerned with it?

What I only want to say is that it is clear that the Torah and the Holy One, blessed be He, expect from us both moral behavior and halakhic behavior. I am not claiming that the Torah is indifferent to morality. I am only claiming that these are two different desires, two different categories, independent of one another. In the end, when we act in a certain way, we have to weigh both morality and Jewish law. But that weighing that we do — its bottom line is not what Jewish law says, but what the Torah and the Holy One, blessed be He, expect us to do, which is a weighing of the moral value and the religious value together.

In the final analysis, the question is what we are going to do. And therefore, for example, another claim I’m going to want to make is that the religious value will not always prevail over the moral value. It is not true that whenever there is a clash, the religious value prevails. No. Sometimes the moral value will prevail. But it is not that Jewish law says that the moral value will prevail, because the moral value is outside Jewish law. Jewish law does not determine what to do when there is a clash between Jewish law and morality — that would be absurd. Because if there is a clash between Jewish law and morality, it is clear that this very determination — what to do here — has to be found outside the halakhic category and outside the moral category. You can call it the category of the will of God. Okay? But the category of the will of God will be some sort of weighing between them. And I’ll bring examples of this later; we don’t have time here, but I’ll bring examples of this later.

Rabbi, I would say about the last sentence you said: that is Jewish law. Jewish law is the sum total of the considerations, including the moral consideration, in determining how one ought to behave.

Right — I have no problem with that, that’s wordplay, so I don’t care. Call it Jewish law. I’ll show you next time that it’s not correct. But that’s really not a genuine disagreement; it’s only a question of what to call it. In the bottom line there is one system of considerations called religious values, there is one system of considerations called moral values — there is no connection between them. Sometimes they clash, sometimes they fit, sometimes they are unrelated, okay? In the bottom line we are supposed to weigh both of them. Whether you call that bottom line “Jewish law” or don’t call it “Jewish law” — that’s only words. Why should I care? Call it whatever you want — call it Moshe for all I care.

I’m talking about there being two systems of values, independent of each other, and the bottom line being a weighing of the two. That’s all. What you call the bottom line — I don’t call it Jewish law, and later I’ll explain why not, but it doesn’t matter. For me that’s a side issue, a semantic dispute about what to call it. It still has to be clear that there is a separate system of values, unrelated to morality, that underlies Jewish law. Opposite it there is a system of values called morality. There is independence between them. Sometimes there is a clash, sometimes there is a fit. In the bottom line, if there is a clash, decisions have to be made. Whether that bottom line is called Jewish law or not called Jewish law — at the moment that semantic question doesn’t interest me. We’ll talk about it next time. Okay?

So let’s summarize it here because… because really these are two kinds of values. I spoke about chocolate. Not eating it because it’s unhealthy; yes eating it because it’s tasty. Is that a contradiction? No. There are two aspects through each of which I look at the chocolate and arrive at a different answer. In the end I have to decide — eat it or not eat it.

There is one commandment, but he tells me: look, from the halakhic standpoint this thing is forbidden; from the moral standpoint this thing is obligatory. Now I said both things. He tells me “the commandment.” On the contrary, I say both of them, both of them — it’s true. Morally it’s problematic; halakhically it’s obligatory, or the other way around, it doesn’t matter right now. I said both. One commandment — what’s the problem? The same commandment told me, look, it’s not healthy but it’s tasty. So is it a contradiction that it’s the same commandment? Right, from the standpoint of health it’s unhealthy; from the standpoint of taste it’s very tasty. But he said it’s unhealthy, but you have to eat it.

Okay. So it’s still unhealthy. Right. So how can I…? You have to eat it, but it’s immoral. Right. What’s the problem? I’m forbidden to eat it altogether. I have to do it even though it’s immoral. What’s the problem? Where is the consideration you said sometimes…?

No, no, no — we’ll talk about that later. We’ll talk about that later. There are situations where Jewish law won’t determine it. You’ll see — we’ll see it. What kinds of clashes there are and how decisions are made in each kind. But first I want the picture to be clear; after that we’ll get to the bottom lines. Fine. Next time. Okay.

Wait, just allow me one second. Rabbi, when are we sitting down? Last week it didn’t work out for us. What? When are you free? We said Sunday at noon. Wait one second, let me just finish here a second — I didn’t mark attendance. Wait. Don’t let me miss the… okay. Fine. Elad? Boaz. Wait, Elad — that’s Elad Tapuchi who left, right? No, that’s not Elad, that’s someone else. That’s Arben Davidovitch. Wait. Noam, that’s you, right? Boaz. Boaz. Wow, I’m never going to get that. Noam is the one with the hoodie, sorry. Boaz. Wait, you weren’t here the last two times, Boaz? No, why wasn’t I here? I was here. You were? Then I don’t have it written down; I have it written that you weren’t. Two weeks ago, at the meeting two weeks ago, I wasn’t there. At last week’s meeting I was there, I came a bit later. Fine, wait, I’ll write it down. Now it’s okay.

Now wait, what’s your name? Omer. Omer. Yes, Omer. Now I have… wait, Arben Davidovitch is the one who was sitting there. And the one who was sitting here is Noam Lev, I’m almost sure. Right? Yes, here I am, that’s Noam. Okay. Fine. When do you want to sit down? Wait, are you here on Tuesday? Tuesday I’m here, but I can only do the morning hours. Does that work for the Rabbi? Yes. Yes? After prayer? The Rabbi is here in the…